Austin v. State

ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this criminal case to review the petitioner’s contention that his trial counsel labored under an actual conflict of interest which requires a reversal of the convictions. The asserted conflict of interest arose when law partners continued to represent codefendants in a criminal trial after one of the codefendants elected to testify against the other. I. The pertinent facts are as follows.

The petitioner, Leroy Jerry. Austin, was one of seven , initial codefendants, all charged with particular violations of the laws regulating controlled dangerous substances. Mr. Austin was represented by John Denholm. Christine Wise, a codefendant, was represented by Mr. Denholm’s law partner, James Salkin.

All seven eodefendants were scheduled for trial in the Circuit Court for Baltimore City, but were instructed to report to Judge Edward Angeletti, the designated administrative judge in charge of the criminal division, for a postponement. When the defendants and their counsel were before Judge Angeletti, the prosecutor, Steven May, indicated that several of the defendants might be willing to plead guilty and to assist in the prosecution of the other defendants. ³⁷⁸ Mr. May indicated that the codefendants would only testify if they could be assured of their safety. In response Judge Angeletti cleared the courtroom of all defendants, their counsel, visitors, and family members, so that he could explore the possibility of a plea arrangement with each defendant and his or her attorney, without the presence of other defendants, attorneys, etc. During the ensuing proceedings the prosecuting attorney proffered that “Ms. Wise ... is aware of and can relate the defendant Tony Leroy Austin with the drug dealing conspiracy which her husband, primarily Henry Newkirk and the other individual Tony Austin and Newkirk, were involved. We believe that she does have detailed knowledge of drug dealings involving those individuals and can provide testimony to the State linking all of these individuals, particularly Tony Austin, with the drug dealing conspiracy.” Ms. Wise agreed to plead guilty in exchange for a six year suspended sentence, with a five year probation period, on the condition that she cooperate with and testify for the prosecution.

At this point, stating that “a conflict situation, very clearly,” existed if Ms. Wise testified against Mr. Austin and both were represented by partners in the same law firm, Judge Angeletti ordered Mr. Salkin not to discuss the case in any way with Mr. Denholm, not even to disclose that Ms. Wise would be testifying against Mr. Austin. Mr. Salkin requested that Judge Angeletti permit him to tell Mr. Denholm that Ms. Wise would be testifying against Mr. Austin. Judge Angeletti refused, and instructed Mr. Salkin to “say nothing to Mr. Denholm about what is going on in this case.” The petitioner Austin and the State failed to reach a plea bargain agreement. Consequently, Judge Angeletti ordered that Mr. Austin be tried in a joint trial with Marshall Queen, another codefendant who did not plead guilty, with the trial to begin the next day before Judge Martin Greenfeld.

The next day, before Judge Greenfeld, Mr. Denholm and Brian Murphy, Mr. Queen’s counsel, objected to the proce ³⁷⁹ dure utilized by Judge Angeletti the day before. They also moved for a continuance, stating that they desired to obtain and review additional materials consisting of a transcript of the proceedings before Judge Angeletti, a new list of witnesses whom the State would be calling, the various plea arrangements, and any statements made by codefendants testifying in response to the plea arrangements. Mr. Murphy also made a motion to sever the proceedings. Judge Greenfeld granted the motion to sever, and the State elected to proceed against Mr. Queen first.

Judge Greenfeld, therefore, sent Mr. Austin and Mr. Denholm back to Judge Angeletti for a trial assignment. Later that day Mr. Queen agreed to plead guilty. Thereafter, Judge Angeletti rescheduled Mr. Austin’s trial for July 18, 1988, before Judge Greenfeld. On July 18, 1988, in front of Judge Greenfeld, Mr. Denholm complained that the requested transcripts had still not been supplied to him, and he objected to the gag order which Judge Angeletti had placed upon his partner, Mr. Salkin.

These objections were made in a “Motion to Rescind the Gag Order and Other Appropriate Relief.” The status of the motion was left unresolved that day. On July 19, 1988, the prosecutor, Mr. May, responded orally in court to Mr. Denholm’s motion. He stated that the gag order was required because Mr. Salkin and Mr. Denholm were partners and Judge Angeletti believed that there was a conflict of interest. The prosecuting attorney also informed Judge Greenfeld that no hearing was ever held on the issue of the conflict of interest.

Mr. May concluded that, “[therefore, I think there is no question about that if Mr. Salkin continues to represent Ms. [Wise] there is definitely a conflict here.” Mr. Denholm speculated that Judge Angeletti had not found a conflict, as Judge Angeletti would not have allowed Mr. Salkin to continue to represent Ms. Wise during the plea negotiations if he had believed that a conflict existed. Mr. Denholm asserted that Judge Angeletti’s allowing Mr. ³⁸⁰ Salkin to represent Ms. Wise during the negotiations was inconsistent with the existence of a conflict, and that, therefore, there was no need for the gag order. Judge Greenfeld referred the parties to Judge Angeletti in order to allow Judge Angeletti to rule on the motion and to review the gag order. Judge Angeletti refused to rule on the motion before the State had responded in writing.

The judge did, however, address the issue of the gag order, telling Mr. Denholm that only Mr. Salkin was under the order and that Mr. Denholm was free to talk to anyone in the case other than Mr. Salkin. Mr. Denholm argued that if Mr. Salkin were not his partner he would be able to talk to him, as Mr. Salkin’s client was to testify against his client. Judge Angeletti refused to lift his gag order and ultimately scheduled Mr. Austin’s trial to begin August 10, 1988. Mr. Austin’s trial took place on August 10, 1988, before a jury and Judge Elsbeth Bothe.

At the trial, Ms. Wise was called as a witness for the prosecution, and she made several statements which incriminated Mr. Austin. She testified that Mr. Austin and Henry Newkirk, who was Wise’s husband, ran a drug operation at the premises where Wise and Newkirk lived, that large quantities of illegal drugs were delivered to and distributed from those premises on an ongoing basis, that Mr. Austin arrived daily to collect the money, and that Mr. Austin was the “supplier” with all of the others working for him. The petitioner Austin was convicted of conspiracy to distribute heroin and distribution of heroin. At Mr. Austin’s sentencing hearing, Mr. Denholm, referring to the period before Ms. Wise had agreed to plead guilty, stated that he had discussed the events with her at least a half a dozen times.

During those conversations she was initially represented by only Mr. Denholm and then later by both partners because the defenses of the two defendants were then consistent. Mr. Denholm stated that Ms. Wise had told him that she had never seen Mr. Austin with either drugs or money. ³⁸¹ Mr. Austin was sentenced to twelve years on each conviction, the sentences to run consecutively, and the Court of Special Appeals affirmed in an unreported opinion. This Court then granted Mr. Austin’s petition for a writ of certiorari which presented the question of whether defense counsel labored under such a conflict of interest that the defendant’s constitutional right to the assistance of counsel was violated.

II

A. The constitutional right to counsel, under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, includes the right to have counsel’s representation free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 , 101 S.Ct. 1097, 1103 , 67 L.Ed.2d 220, 230 (1981). See Pressley v. State, 220 Md. 558 , 155 A.2d 494 (1959). To establish a violation of the constitutional right, a defendant “must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 , 100 S.Ct. 1708, 1719 , 64 L.Ed.2d 333, 348 (1980).

To the same effect, see Pressley v. State, supra, 220 Md. at 562 , 155 A.2d at 496 . The Supreme Court has pointed out, however, that it “is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests” and that “it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.” Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052, 2067 , 80 L.Ed.2d 674, 696 (1984). 1 There ³⁸² fore, a court, having found the existence of an actual conflict of interest, should refuse “ ‘to indulge in nice calculations as to the amount of prejudice’ attributable to that conflict.” Cuyler v. Sullivan, supra, 446 U.S. at 349 , 100 S.Ct. at 1719 , 64 L.Ed.2d at 347 , quoting Glasser v. United States, 315 U.S. 60, 76 , 62 S.Ct. 457, 467 , 86 L.Ed. 680, 702 (1942). B. Among the criminal cases where it has been asserted that a potential or actual conflict of interest existed, probably a majority involve the situation where two or more codefendants are represented by one attorney. The present case, however, involves two codefendants represented by different attorneys who are law partners.

The State, without citing any supporting authority, seems to suggest that a different analysis for determining the presence of an actual conflict of interest should be applied where law partners, ³⁸³ instead of a single attorney, represent codefendants. 2 We have found no support for the State’s suggestion. In our view, at least under circumstances such as those presented in this case, the presence or absence of an actual conflict of interest should be resolved by the same principles, regardless of whether the codefendants are represented by the same attorney or by law partners. The cases which have considered the issue have generally concluded that representation of codefendants by partners or associates in a private law firm should be treated the same, for purposes of conflict of interest analysis, as representation of codefendants by one attorney. In a case where a prosecution witness was represented by one member of a law firm and the defendant by another member of the same firm, an Illinois court stated (People v. Dace, 153 Ill.App.3d 891, 896 , 106 Ill.Dec. 625, 628 , 506 N.E.2d 332, 335 , app. denied, 116 Ill.2d 565 , 113 Ill.Dec. 307 , 515 N.E.2d 116 (1987)): “It is well settled that the knowledge of one member of a law firm is imputed to other members of the firm____ A conflict of interest for one member of a firm extends to all members of a firm____ In a case where two members of a firm represent clients with conflicting interests, it can only be concluded that you have a situation where the same attorney is representing both clients.

In the instant case attorney Markese’s relationship as counsel for [prosecution witness] Moffett and his knowledge of his client’s ³⁸⁴ case must be imputed to attorney Kielian, who represented the defendant.” See also, e.g., Ross v. Heyne, 638 F.2d 979, 983 (7th Cir.1980) (stating that the situation in which one attorney represented the defendant, while his law partner represented codefendants who testified for the prosecution, was sufficiently similar “to the typical multiple representation case to warrant application of the same principles and analysis”); People v. Grigsby, 47 Ill.App.3d 812, 820 , 8 Ill.Dec. 243, 248 , 365 N.E.2d 481, 486 (1977) (“the disqualification of one partner from a case disqualifies his copartners”); The People v. Stoval, 40 Ill.2d 109, 112-113 , 239 N.E.2d 441, 443-444 (1968); State v. Lem’Mons, 238 Kan 1, 8-10, 705 P.2d 552, 556-557 (1985) (a conflict of interest existed where the husband, in a husband and wife law firm, represented one codefendant while the wife represented the other, and the codefendants attempted to implicate each other); Commonwealth v. Hodge, 386 Mass. 165, 169 , 434 N.E.2d 1246, 1248 (1982) (holding that it was immaterial for conflict of interest purposes whether one attorney or two attorneys in the same firm represented the witness and the defendant); Commonwealth v. Geraway, 364 Mass. 168, 174-176 , 301 N.E.2d 814, 817-818 (1973) (representation of the defendant and an adverse witness by different lawyers in same law firm was held to be a conflict of interest); State v. Bellucci, 81 N.J. 531, 541-542 , 410 A.2d 666, 671 (1980) (conflict of interest rules as applied to a law firm should be viewed as if the firm were really one lawyer); People v. Mattison, 67 N.Y.2d 462, 469-470 , 503 N.Y.S.2d 709, 713 , 494 N.E.2d 1374, 1378 , cert. denied, 479 U.S. 984 , 107 S.Ct. 571 , 93 L.Ed.2d 575 (1986) (holding that the defendant was denied his right to the effective assistance of counsel when a codefendant’s plea bargain, including a promise to testify against the defendant, was negotiated by the law partner of the defendant’s counsel). 3 ³⁸⁵ The same principle is reflected in 1 American Bar Association Standards for Criminal Justice (2nd ed. 1980, 1986 Cum.Supp.). Under The Defense Function, § 4-3.5(b) Conflict of Interest, it is stated (emphasis added): “a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case____ The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several codefendants____” Thus, the potential for a conflict of interest is present whenever codefendants are represented by the same lawyer or by lawyers who are associated in practice. See also Rule 1.10(a) of the Maryland Lawyers Rules of Professional Conduct which states: “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so____” There are additional reasons to treat, for purposes of conflict of interest analysis, the representation of codefendants by law partners as the same as the representation of codefendants by one attorney. Several of these reasons were set forth by the Supreme Court of New Jersey in State v. Bellucci, supra, 81 N.J. at 541-542 , 410 A.2d at 671 , as follows: “There is ready access to confidential information among members of a law firm.

The close association of members heightens the risk of even inadvertent disclosure. Each partner’s professional knowledge is justifi ³⁸⁶ ably imputed to the entire firm, regardless of actual disclosure.[ 4 ] See, e.g., Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 , 1321 (7th Cir.1978), cert. den., 439 U.S. 955 , 99 S.Ct. 353 , 58 L.Ed.2d 346 (1979). The shared economic interest of the entire firm in the clients of individual members also supports treating a partnership as one attorney.

A financial stake in the outcome of a case is itself a source of conflict. See generally NAACP v. Button, 371 U.S. 415, 443 , 83 S.Ct. 328 [342], 9 L.Ed.2d 405 (1963). Perhaps most importantly, public confidence in the integrity of the Bar would be eroded if conduct proscribed for one lawyer could be performed by his partner. See Note, ‘Professional Responsibility—Conflicts of Interest Between Legal Aid Lawyers,’ 37 Mo.L.Rev. 346 (1972).” Therefore, we reject the State’s suggestion that, in determining whether an actual conflict of interest existed in this case, we should not apply the same principles which would be applied if the petitioner and Ms. Wise had been represented by the same attorney throughout.

C. The Supreme Court has made it clear that representation of multiple defendants in a criminal case, by the same attorney or law partners, is not per se an actual conflict of interest. Cuyler v. Sullivan, supra, 446 U.S. at 348 , 100 S.Ct. at 1718 , 64 L.Ed.2d at 346 ; Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1177 , 55 L.Ed.2d 426, 433 (1978). As previously indicated, “a possible conflict inheres in almost every instance of multiple representation,” Cuyler v. Sullivan, supra, 446 U.S. at 348 , 100 S.Ct. at 1718 , 64 L.Ed.2d at 346 . There is, however, no precise test as to when the possible conflict of interest inherent in dual or multiple representation will become an actual conflict of interest.

See, e.g., Judge Lombard’s discussion for the ³⁸⁷ court in Camera v. Fogg, 658 F.2d 80, 86-90 (2d Cir.), cert. denied, 454 U.S. 1129 , 102 S.Ct. 981 , 71 L.Ed.2d 117 (1981), and the authorities cited therein. See also Parker v. Parratt, 662 F.2d 479, 484 (8th Cir.1981), cert. denied, 459 U.S. 846 , 103 S.Ct. 102 , 74 L.Ed.2d 91 (1982). Nevertheless, there is one multiple representation situation where the courts have generally taken the position that an actual conflict of interest exists. That is where an attorney, or law partners, represent in the same criminal case both the defendant and a codefendant (or other individual) who testifies adversely to the defendant.

Thus, Ross v. Heyne, supra, 638 F.2d at 982-985 , involved the situation where several codefendants were charged with involvement in a particular robbery, where the defendant Ross was the only one pleading not guilty and going to trial, and where two of the codefendants, represented by a law partner of Ross’s attorney, testified for the prosecution and adversely to Ross. The United States Court of Appeals for the Seventh Circuit held that “the trial counsel had an actual conflict of interest,” 638 F.2d at 984 . The court explained (id. at 983): “An actual conflict would arise where defense counsel is unable to cross-examine a prosecution witness effectively because the attorney also represented the witness. United States v. Mavrick, 601 F.2d 921, 931 (7th Cir.1979).

The problem that arises when one attorney represents both the defendant and the prosecution witness is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination, but which he refuses to use for fear of breaching his ethical obligation to maintain the confidences of his client. See Code of Professional Responsibility, Canon 4 &