Alexis Hoag-Fordjour (Brooklyn Law School) has posted Divided Loyalties on SSRN. Here is the abstract:
This Article explores an underexamined aspect of the Sixth Amendment right to counsel: conflicts-of-interest that arise between defense counsel and criminal defendants based on counsel’s personal interests. Conflicts between clients and counsel can arise due to counsel’s duty to another client, to a former client, to a third person, or to counsel’s personal interests. Yet conflicts stemming from counsel’s personal interests have received less ethical scrutiny, scholarly attention, and jurisprudential development relative to the other types. This collective inattention has created a gap in recognizing and addressing such conflicts. Considering the criminal legal system’s pervasive inequalities, the impact of this disregard falls heaviest on under-resourced and otherwise marginalized defendants.
Conflicts stemming from counsel’s personal interests can be difficult to identify and address. They may be based on counsel’s internal beliefs or biases, rendering them invisible to external actors. Some defense delivery models create personal interest conflicts, whereby acknowledging their existence risks disrupting court-appointed counsel systems. All undermine effective representation. Critical engagement is crucial to gain a better understanding of counsel’s conflicting personal interests and to identify potential remedies.
This Article makes three novel contributions. First, it offers a taxonomy of defense counsel’s personal interests, organizing them into four categories: financial, internal, situational, and structurally induced. Second, it engages critical race theory to identify the factors that have contributed to the lack of jurisprudential development and ethical enforcement of counsel’s personal interests. Third, it identifies how state law and criminal legal system actors can utilize the taxonomy to help mitigate and eliminate personal interest conflicts. It concludes with a call to expand these efforts to fill the gap where the ethical rules and Sixth Amendment protections fall short.This examination is necessary and timely. Any conflict between the accused and defense counsel frustrates counsel’s basic duty to assist the defendant, jeopardizes public confidence in the adjudication system, and erodes defendants’ Sixth Amendment right to counsel.