STATEMENT OF ASSIGNMENT

You have asked me to research the potential conflict of interest situation and to prepare a memorandum advising you of the various legal and ethical issues involved.

FACTS

John Smith is a Criminal Defense Attorney who represents Bob Jones. Jones is charged with robbery. John’s wife, Mary, is a police officer employed by the Milpitas Police Department. The Milpitas Police Department investigated the Bank of America robbery, and arrested Bob. Although Mary did not participate in Bob's arrest, she did interview the robbery victim, Sue Smith, a Bank of America teller, and wrote a police report recording what the victim had to say about the crime. Attorney Smith fully disclosed his wife's involvement, with the case, to his client.

ANALYSIS

As guaranteed by section 15 of article I of the California Constitution, the right to effective assistance of counsel "... means more than mere competence. Lawyering may be deficient when conflict of interest deprives the client of undivided loyalty and effort." (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [180 Cal.Rptr. 177, 639 P.2d 248, 18 A.L.R.4th 333].)

One component of the duty of loyalty is that a lawyer cannot be directly adverse or materially adverse to the interest of a current client, such as the position in which Attorney Smith finds himself as the defense attorney for Jones, while being the husband of a potential State witness, Police Officer Mary Smith, who will be called to testify against Jones.

"Under ... the Sixth Amendment to the United States Constitution as applied to the states through the due process clause of the Fourteenth Amendment ..., a defendant in a criminal case has a right to the assistance of counsel. [¶] The constitutional guaranty 'entitles the defendant not to some bare assistance but rather to effective assistance.' "

People v. Bonin (1989) 47 Cal.3d 808, 833 [254 Cal.Rptr. 298, 765 P.2d 460], italics in original.

"Included in the right to the effective assistance of counsel is ‘a correlative right to representation that is free from conflicts of interest." "Conflicts of interest broadly embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests." (Id. at p. 835.)

People v. Bonin, supra, 47 Cal.3d at p. 834-[.

"It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety." (Italics in original; fn. omitted; [People v.] Rhodes [(1974) 12 Cal.3d 180,, at p. 185;] see also People v. Barboza (1981) 29 Cal.3d 375; Love v. Superior Court (1980) 111 Cal.App.3d 367, 372.)

People v. Jackson (1985) 167 Cal.App.3d 829, 832

In People v. Jackson, the appointed defense counsel engaged in an extended dating relationship with the prosecutor while representing defendant. The court held that such a situation "naturally and reasonably gives rise to speculation that the professional judgment of counsel as well as the zealous representation to which an accused is entitled has been compromised." People v. Jackson, 167 Cal.App.3d at 833. "No matter how well intentioned defense counsel is in carrying out his responsibilities to the accused, he may be subject to subtle influences manifested, for example, in a reluctance to engage in abrasive confrontation with opposing counsel during settlement negotiations and trial advocacy." Id. Accordingly, in this situation, the court held that defense counsel cannot represent defendant without first explaining fully to him the nature of his relationship with opposing counsel and "affording the accused the opportunity, if he so desires, to secure counsel unencumbered by potential divided loyalties." Since defense counsel did not do so, the court imposed a rule of automatic reversal. At least where there was no disclosure, the court would not "indulge in nice calculations as to the amount of [resulting] prejudice." People v. Jackson, 167 Cal.App.3d at 833, quoting Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612.

In this case, defense counsel's personal relationship is with a prosecution witness rather than the prosecution. The personal relationship is much more significant than a mere dating relationship since counsel and the witness are married. Mary could be called as a witness to testify about what the victim told her, especially if the victim's testimony at trial diverged from what was in the police report. To defend Jones competently, Attorney Smith might have to cross-examine Mary. Thus, the conflict is much more direct than if it was only the opposing counsel that Attorney Smith had a personal relationship with. No matter how hard he tried to put aside his relationship with Mary and conduct a vigorous cross-examination, he would be reluctant to confront the witness and tempted to soften his cross-examination, to the detriment of his client.

Jackson did not say what would have happened if defense counsel had disclosed his dating relationship to his client, except that, presumably, the case would not be automatically reversed. Jackson's comment that even a "well intentioned" defense could be undermined by the "subtle influences" emanating from such a relationship suggest that conflicts involving personal relationships with opposing counsel should be best avoided whether disclosed or not.

It should be noted that mere disclosure is not enough -- the client must give informed consent, as defined in Rule 1.0(e) (American Bar Association Rule).

"Informed consent" denotes the agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (American Bar Association Rule 1.0(e))

That the influences are subtle and can defeat even a well intentioned defense suggests that it would be difficult for the client to give an"informed" consent under the circumstances.

To establish ineffective assistance of counsel under the Sixth Amendment, a

defendant must show deficient performance under an objective standard of

professional reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052].) He must also show prejudice under a test of reasonable probability of an adverse effect on the outcome. (Id. at pp. 687, 691-694 [80 L.Ed.2d at pp. 693, 695-697].) A "reasonable probability" is not a probability that the failing "more likely than not altered the outcome of the case" (id. at p. 693 [80 L.Ed.2d at p. 697]), but simply a "probability sufficient to undermine confidence in the outcome" (id. at p. 694 [80 L.Ed.2d at pp. 697-698]).

Its hard to tell from the beginning of the case whether Mary’s testimony will be important to the defense until you can know what the victim will say. Because I can't tell, I must assume would be more obvious if Mary had been the victim of the crime, rather than just witness as the officer that interviewed the victim, probably no kind of informed disclosure would cure such a conflict of interest.

CONCLUSION

Can Attorney Smith maintain his duty of loyalty to his client without it conflicting with his duty of loyalty to his wife? These interests are conflicting. Indeed, it would strain credulity to claim otherwise. I am of the view that Attorney Smith has a conflict of interest arising from his relationship with his wife, Police Officer Mary Smith, which may not be cured by full disclosure to the client and the client signing an informed consent. This conflict of interest will have an adverse effect on counsel's performance.