Ethics Opinon 1995-1

I
QUESTION PRESENTED

A criminal defendant is charged with having two prior serious felony convictions pursuant to Cal. Pen. Code §667. Pursuant to that section, conviction of the instant offense will carry a minimum indeterminate sentence of 25 years to life. Is it appropriate for an attorney whose office has represented the client on one of the alleged priors to represent the client on the instant case?

II
SUMMARY

Effective representation of clients on "strikes" cases involves vigorous representation on both the immediate charge as well as exhaustive review of, and possibly vigorous attack on, the validity of the prior convictions. Prior counsel's effectiveness may be an issue, thereby creating a potential conflict of interest. Pursuant to Rule 3-310 of the California Rules of Professional Conduct,(1) the law firm in the question presented above must disclose to the client the potential conflict of interest in order to accept or continue representation of the client. Apart from rules of legal ethics, the Committee discourages such employment in accord with California case law.

II
STATEMENT OF FACTS

Client is charged in a criminal complaint with having two prior serious felony convictions (i.e., two "strikes") qualifying for sentencing enhancement pursuant to the provisions of Cal. Pen. Code §667. The allegations are such that conviction pursuant to the subject complaint (constituting Client's third "strike") will carry a minimum indeterminate sentence of 25 years to life.

Attorney is asked to represent Client. Attorney is employed by Law Firm, who represented Client in one of prior convictions. (2)

IV
ANALYSIS

1. Issues of Substantive Law: Collateral Attack of Priors.

Under California, prior convictions may be collaterally attacked where obtained in violation of a criminal defendant's constitutional rights. In People vs. Coffey (1967) 67 Cal.2d 204, our state Supreme Court stated:

[T]o the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations. . . . To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions . . . necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.

People v. Coffey, supra, at 214-215. Adequacy of legal representation is among those grounds for attack. People v. Coffey, supra, at 215.

More recently, the California Supreme Court held that a defendant may move to strike a prior conviction on grounds that the record failed to show on its face that the client was made aware of expressly waived his constitutional rights. People v. Sumstine, (1984) 36 Cal.3d 909. The court held, however, that the defendant moving to strike a prior conviction may not simply allege that the record is silent regarding the advising of those constitutional rights. Rather, the defendant must affirmatively allege that at the time of the guilty plea, the defendant did not understand or did not knowingly and voluntarily waive those rights. (3)

2. Conflicting Interests.

Any two or three strike case requires that the prior conviction(s) be thoroughly investigated. Where the attorney who represents the client on the new case also represented the client on the prior conviction, a potential conflict arises. It will not be in the law firm's interest to admit or discover improper plea advice, or failure to investigate. Furthermore, an attorney from the same firm is unlikely to be as motivated to probe the effectiveness of an associate. Conflicts of interest "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." People v. Bonin, (1989) 47 Cal.3d 808, 835.

In determining the propriety of the proposed employment, therefore, Attorney must recognize that she will be examining the adequacy of Law Firm's prior representation. The enhanced punishment of the subject "third strike" representation is directly premised upon the conviction of both former "strikes," one for which Law Firm was employed. It is in Client's interest to attack the prior representation aggressively, albeit in good faith. (4) / However, to the extent the prior representation was, in fact, incompetent, Law Firm and the attorneys involved in the prior representation may well be subject to discipline (Rule 3-110(A)), civil liability or both.

Therein lies a division of loyalty, which places the interests of Attorney and Client in conflict. Therefore, based upon Attorney's relationship to Law Firm, this Committee believes that Attorney has an interest in the subject matter of the representation that implicates Rule 3-310(B). (5)

Pursuant to Rule 3-310(B)(4)(6) , where an attorney has or had a legal, business, financial, or professional interest in the subject matter of the representation, he or she must not accept or continue representation of the client without providing written disclosure thereof. "'Disclosure' means informing the client . . . of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client. . . ." Rule 3-310(A)(1). Accordingly, without regard to the competence of the prior representation, this Committee concludes that the requirement of written disclosure mandates that Client be alerted to the relevance of Law Firm's prior representation, and notified that it will be Attorney, an employee of Law Firm, who will be evaluating Law Firm's prior representation.

It warrants emphasis that the Committee's application of Rule 3-310 is objective in nature, and does not imply that Attorney is incapable of adequately defending Client in the instant matter.

[It does not] matter that the intention and motives of the attorney are honest. The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.

People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 159, 172 Cal. Rptr. 478. in other words, Rule 3-310(B) does not condemn an attorney for finding himself or herself in this situation. That rule simply highlights the fact that the client must be fully apprised of the issues facing the attorney in evaluating the competence of his or her representation. Written disclosure, effectively conveyed, is the mandate of Rule 3-310(B) in this instance. (The California Rules are relatively permissive in this regard. (7)

Alerted by Attorney's written disclosure, Client then has the burden to determine the propriety and efficacy of the continued representation, and to apply to the court for alternative counsel if dissatisfied with the representation. Even when such objections are raised by a criminal defendant after receiving such disclosure, disqualification does not necessarily follow. People v. Daniels, (1991) 52 Cal.3d 815, 844, 277 Cal. Rptr. 122, 131 (1991). The lesson of Rules 3-310(B) is that the materiality of the conflict is to be viewed in the eyes of the Client.

3. Representation by Law Firm.

Our conclusion is not affected by the fact that Attorney did not participate in the initial representation. Rule 3-310(B) applies where (i) Attorney was not involved in the prior representation, but (ii) she knows that a partner or associate of Law Firm has the implicating interest in the subject matter of the representation. See Discussion following Rule 3-310(B). In such circumstances, the requirements of Rule 3-310(B) are imputed to Attorney, as well as any other member or employee of Law Firm. (8)

4. Attorney Competence.

This is not to say that compliance with Rule 3-310(B) removes any conflicting interest issues. Rather, it permits Client to fully participate in the representation by apprising him or her of material elements thereof. Under the subject facts, if disclosure is given pursuant to Rule 3-310(B), and if Attorney determines that Law Firm's prior representation was above constitutional reproach, the representation can thereafter proceed, presuming no objections from Client.

It is another matter entirely where Attorney determines that Law Firm did not render competent representation with regard to the previous "strike," or reasonably determines that the prior representation was constitutionally suspect. The conflict of interest has then transformed from potential to actual, and it is impossible to competently represent Client without Attorney challenging the former representation of Law Firm.

Granted, the Rules do not appear to expressly require withdrawal by Attorney, such that at first blush, it may appear that continued representation is a theoretical possibility. For instance, even representation in the face of actual conflicts of interest may be consented to by a client. Rule 3?310(C)(2). However, it is difficult to conceive how such representation does not fall below the standard of care in tendering such representation. At a minimum, it mandates ". . . informed speculation that [Client's] right to effective representation was prejudicially affected." People v. Mroczko, (1983) 35 Cal.3d 86, 105.

Conflict situations inherently give rise to issues concerning the lawyer's ability to practice with competence. The lawyer's duties of undivided loyalty, disclosure, and preservation of client confidences and secrets are all duties that are fundamental to a lawyer's performance of legal services. Thus, situations that strain or impair the lawyer's ability to fulfill these duties also strain or impair the lawyer's duty to perform legal services competently.

California Practice Handbook: Attorney Ethics, §2.05 (Matthew Bender 1993).

Rule 3-110(A) states that "[a] member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." Competence is defined as the application (i.e., not just the possession) of diligence, learning and skill, and the mental, emotional and physical ability reasonably necessary to the representation. Rule 3-110(B). A client cannot waive the duty of an attorney to practice competently. Los Angeles County Bar Association Formal Opinion No. 471.1 (9)

This is invariably an uncomfortable position for Attorney. Granted, it is possible that the representation can proceed effectively. However, in the Committee's view, the divided loyalties following a determination that Law Firm's prior representation was inadequate infect the representation with issues of competence that place unnecessary burdens on counsel and needlessly compromise the integrity of the process, without regard to the effectiveness of the latter representation. Therefore, Attorney should withdraw from or decline the representation given such a determination. Rules 3-700(B)(2) & (C)(2). (10)

5. Practical Consideration in Criminal Representation.

The Committee is well aware that rules of legal ethics are not applied in a vacuum, and this is particularly true in considering the representation of criminal defendant. The right to conflict-free representation derives from the Sixth Amendment as applied to the states by the Due Process Clause of the Fourteenth Amendment. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994), citing Powell v. Alabama, 287 U.S. 45, 68 (1932). "The Sixth Amendment's right to counsel requires effective assistance by an attorney, which has two components: Competence and conflict-free representation." Wood v. Georgia, 450 U.S. 261, 271 (1981).

"When an attorney defends a person accused of crime he has but one intended beneficiary -- his client." DeLuca v. Whatley (1974) 42 Cal.App.3d 574, 576. "It is an attorney's duty to protect his client in every possible way, and it is a violation of that duty for the attorney to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances. The attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interest." Day v. Rosenthal, (1985) 170 Cal.App.3d 1125, 1143 (emphasis in original, internal quotations omitted).

Thus, the Committee is not alone in its intuitive concerns about the ability of counsel to adequately and objectively scrutinize his or her prior representation, or that of his or her firm. A related question was addressed in People v. Bailey (1992) 9 Cal.App.4th 1252, whether appointed trial counsel should be appointed to represent a defendant on appeal. In Bailey, the court held that due to the importance of the issue of ineffective assistance of counsel, trial counsel could not represent the defendant on appeal under the circumstances presented.

Accordingly, the Committee views the ethical requirements of 3-310(B) as inadequate in this context. Rather, a requirement of formal client waiver of the potential conflict and consent to the representation appears mandated as a matter of substantive law notwithstanding the absence of that requirement in Rule 3-310(B). Generally, a client may elect to waive a conflict of interest, actual or potential, provided that such waiver is voluntarily, knowingly, and intelligently given. Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994), citing Holloway v. Arkansas, 435 U.S. 475, 483 n. 5 (1974); People v. Bonin (1989) 47 Cal.3d 808.

However, even waiver and consent may not suffice. Witness People v. Bailey (1992) 9 Cal.App.4th 1252, wherein the criminal defendant declared under penalty of perjury that he did not believe:

. . . there is any reason for another lawyer to review the records of my case regarding potential issues of ineffective assistance of counsel. I do not believe that such issues exist and I make no such request.

Id., at 1254. The Bailey court stated its belief ". . . that there is an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal." Id., at 1254.

The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Id., at 1255, citing ABA Model Rule 1.7(b) (see note 6, supra).

Counsel must therefore realize that accepting the representation in the face of the potential conflict may well be jeopardizing the very proceeding he or she is retained to defend. "[T]he issue of effective assistance of counsel is thus left open to further attack without a final resolution." People v. Bailey, supra, at 1255. Unaided by foreclosing authority, this Committee, like the court in Bailey, discourages such employment. Id., at 1254.

V
CONCLUSION

Effective representation in "three strikes" cases may require vigorous attack on the validity of those prior strikes. A potential conflict exists where counsel on the new case also represented the client on one of the priors that is under attack. That potential conflict must be disclosed in writing to the client. That conflict becomes actual where the prior representation was constitutionally suspect.

While not required under the California Rules of Professional Conduct, substantive law suggests that formal waiver of the conflict, actual or potential, and consent to continued representation be obtained from the client. In any event, due to the nature of a criminal proceeding and the constitutional import of the effective assistance of counsel, this Committee discourages the subsequent representation in this context. (11)

This opinion is advisory only, and is not binding on the San Diego County Bar Association, its officers or agents, the State Bar of California or any court.

1. Unless otherwise specified, references to Rules shall be to the California Rules of Professional Conduct, operative May 27, 1989, as amended.
   
   
2. The Committee is accepting the broad definition of "Law Firm" articulated in the California Rules of Professional Conduct, which includes "a publicly funded entity which employs more than one lawyer to perform legal services." Rule 1-100(B)(1)(d).
   
   
3. For purposes of this advisory opinion, the Committee accept Sumstine as the law of this state. We recognize that its future, however, is not certain.

   Federal law does not recognize a right of collateral attack of a prior conviction. In Custis v. United States, 114 S.Ct. 1732 (1994), the United States Supreme Court denied any right to collateral attack, except for criminal convictions obtained in violation of the Sixth Amendment right to counsel. There, the "prior" enhanced a sentence pursuant to the Armed Career Criminal Act.

   In a number of recent opinions, the Ninth Circuit has extended the holding of Custis beyond the Armed Career Criminal Act and has held that for purposes of various other enhancements pursuant to the Sentencing Guidelines, there is no independent basis for collateral attack of prior felony convictions unless the statute specifically speaks to the issue. See United States v. Fondren, 32 F.3d 429, 430 (9th Cir. 1994); United States v. Burrows, 36 F.3d 875 (9th Cir. 1994); United States v. Daly, 28 F.3d 88 (9th Cir. 1994).

   The California Supreme Court has not applied Custis and its progeny to state court collateral attack on prior convictions in the "three strikes" context.

4. "A member shall not seek, accept, or continue employment if the member knows of or should know that the objective of such employment is: . . . to present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law." Rule 3-200(B), California Rules of Professional Conduct. (Compare Cal. Bus. & Prof. Code §6068(c).)
   
   
5. There may be other grounds for finding a conflict of interest, depending upon the facts. For instance, Law Firm or its representatives may be called to testify as to Client's representation. Rule 3-310(B)(1); Rule 5-210. Such additional issues depend upon the facts and circumstances of the particular case.
   
   
6. Rule 3-310(B) provides as follows:

   (B) A member shall not accept or continue representation of a client without providing written disclosure to the client where:

   (1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or
   
   (2) The member knows or reasonably should know that:

   (a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or
   
   (b) the previous relationship would substantially affect the member's representation.

   (3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or

   (4) The member has or had a legal, business, financial, or professional interest in the subject matter of the representation.

7. Compare Rule 1.7(b) of the ABA Model Rules of Professional Conduct which provides (as relevant, emphasis added):

   (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

   (1) the lawyer reasonably believes the representation will not be adversely affected; and
   

   (2) the client consents after consultation . . . .

   The ABA Rules have "no direct effect" on California lawyers practicing in state courts, although they may be looked to as a collateral source in those instances where there is no direct authority in California law and no conflict with this state's public policy. California State Bar Formal Opinion Nos. 1983-71, 1993-128.

8. On a related point, this Committee has previously found that ethical walls, or "glass walls" as they are often called, are in certain circumstances ineffective in isolating the conflicting interests of one lawyer of a law firm from vicariously affecting the other lawyers within the same firm. San Diego County Opinion No. 1993-2.
   
   
9. This concept is akin to the ABA Model Rules, where a client must not be asked to consent to a conflict of interest if a "disinterested lawyer would conclude that the client should not agree to the representation under the circumstances." Comment to ABA Model Rule 1.7. There is no express California equivalent to that restriction. Relevance of the ABA Model Rules of California practice is discussed at note 6, supra.
   
   
10. Rule 3-700(B)(2) provides: "A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if: . . . (2) the member knows or should know that continued employment will result in violation of [the California Rules of Professional Conduct] or of the State Bar Act; . . . ." Rule 3-700(C)(2) states that withdrawal is permitted where such a violation is "likely to result."
    
    
11. Sentencing enhancements are not novel, nor a recent development in criminal law. However, this issue has never before been submitted for consideration by this Committee. To the extent sufficiently analogous circumstances are presented outside of the "three strikes" context, our conclusion would not change.
    

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.