Federal Corner: Conflict of Interest Arising from Dual Representation

Sheperd I: 27 F. 4th 1075 (5th Cir. 2022)

Sheperd II: 44 F.4th 305, 2022 U.S. App. LEXIS 22357; 2022 WL 3274129 (5th Cir. August 11, 2022)

In a couple of recent opinions, the Fifth Circuit Court of Appeals clarified the rules regarding ineffective assistance of counsel involving conflicts of interest. The decisions address the actions of an attorney who breached his duty of utmost loyalty and harmed a client. But, the decisions also raise the possibility that more ethical attorneys might make similar mistakes much more innocently.

Let’s start at the end with a quick recap of the facts cited by the Court in the second case. Ann Sheperd, the owner of a home‑health agency, was convicted of Medicare fraud. On appeal she complained that her Sixth Amendment right to effective assistance of counsel had been violated. Turns out, Sheperd’s pretrial counsel was also representing one of the Government’s star witnesses. The Court Remanded the case for an evidentiary hearing on whether Sheperd’s lawyer’s conflict of interest—a conflict the Government knew about—adversely affected his representation. The district court’s answer: Yes. (Sheperd II).

Clearly, the position occupied by Sheperd’s counsel is not one that a competent lawyer with a grasp of ethical principles and a casual understanding of conflict of interest would occupy. However, due to the complexity of the rules that address conflict of interest, defense counsel does not have to be oblivious to ethical obligations to occupy similar territory. In addition to being a firm reminder of the duty of utmost loyalty owed to a client, the case is important for how it addressed the second prong of the Strickland analysis (harm), and for the remedy available for this type of harm. If you ever thought about writing a writ, or just hope to avoid being the legitimate subject of one, read these cases.

I. SHEPERD I

A.   The Facts

The facts of the case are set out brilliantly in Sheperd I. However, a little editing has been done for brevity, clarity, and to avoid further shaming of the lawyers. The quotes from both cases appear without the footnotes, citations, and quotation marks present in the opinions.

Ann Sheperd owned and operated a home‑health agency. In June 2016, a grand jury indicted her (and several others) with conspiracy to commit healthcare fraud. Sheperd retained counsel. The district court set trial for August 2016. A month later, Sheperd replaced her counsel. The District Court declared the case complex, and relaxed the trial deadlines. Sheperd replaced her counsel again in February 2018. “Attorney A”.

Two months after entering his appearance as Sheperd’s counsel, Attorney A met with FBI agents and a federal prosecutor to discuss Sheperd’s trial. But he was not there acting on Sheperd’s behalf. Attorney A was there to act on another client’s behalf—Okpara. Attorney A had helped Okpara secure a plea deal related to healthcare fraud in a different district court almost a year before. So why did Okpara need Attorney A at the meeting? Because Okpara was Sheperd’s friend and business associate—a relationship the Government wanted to exploit by calling Okpara as a witness against Sheperd.

If representing both Sheperd and Okpara at the same time sounds zany to you, then you wouldn’t be alone. The Government thought it sounded zany, too. In fact, it even pointed out to Attorney A that he had an obvious conflict. Attorney A replied that he hadn’t noticed. Even so, the meeting continued since, according to Attorney A, Sheperd wanted to plead guilty and would do so by the next month, in May. Turns out, the meeting was a success … for Okpara. Afterward, the Government amended Okpara’s plea deal to include 5K1 consideration. That is, in exchange for Okpara having provided the Government with substantial assistance in the investigation or prosecution of another person who has committed an offense, the Government agreed to permit Okpara to receive a reduced sentence.

Nobody told Sheperd about Attorney A’s conflict. Nobody told the district court about it either. But that time was not wasted. The Government used it to bring six more counts of healthcare fraud against Sheperd. The grand jury returned a superseding indictment that charged Sheperd with all six counts. Attorney A, for his part, continued to receive ‑provided discovery. Not until August—with trial looming—did Attorney A start trying to address his conflict. He approached a former state Assistant Attorney General with experience prosecuting healthcare‑fraud cases “Attorney B” about taking over Sheperd’s defense. Attorney A had worked with Attorney B before, and Attorney B got involved, in his words, on August 14.

On August 20, Attorney A finally revealed to Sheperd his conflict and proposed solution. But Sheperd felt burned. She initially refused to retain Attorney B. The district court set a status conference.

The status conference took place on August 27, 2018. Attorney B was not present. Attorney A assured the court that Attorney B would be prepared for trial two weeks later. That same day, Sheperd changed her mind, agreed to let Attorney B represent her, and Attorney A then withdrew as counsel.

A few days later Sheperd’s case was transferred to a new judge. The new judge held a pretrial conference on September 4. At the conference the judge asked the parties if they could move up the trial date. All parties represented they could not, pointing, in part, to Attorney B’s recent appearance in the case. Counsel for defendants also flagged the conflict issue for the district court, but suggested that the trial could proceed so long as Okpara did not testify. After discussing the conflict, the judge stated that he had never seen this type of conflict. The district court then, to the surprise of all parties, moved the trial date up by three days—to Friday, September 7.

On September 6, the day before trial, Attorney B moved for a continuance, arguing, the unfortunate circumstances surrounding the status of Ms. Sheperd’s counsel had denied him significant trial preparation time. He had only worked meaningfully on the case for approximately one week, despite having been involved for three. Alternatively, Attorney B moved to withdraw. That same day, all defendants also filed a joint motion, asking the court to, among other things, continue the trial and exclude Okpara’s testimony. The court did not rule on the motions. Trial began the next day.

A few days into trial, the Government called Okpara as a witness. That brought the conflict‑of‑ interest issue to a head. Defense counsel collectively reasserted the arguments from their pretrial motion: (1) Attorney A could have provided Okpara with privileged information to enhance Okpara’s efforts to cooperate with the Government; (2) if Okpara testified, he could share self‑incriminating statements that Sheperd shared with Attorney A; and (3) the current indictment could have been based on tainted information from Okpara. Attorney A and Sheperd took the stand. The district court ultimately excluded Okpara from testifying.

At the close of trial, Attorney B renewed the defendants’ joint pretrial motion, asking the district court to dismiss the case because of the conflict of interest. The district court denied the motion. The jury found Sheperd guilty on all counts. The district court sentenced her to 30 years in prison. Sheperd timely appealed, alleging several grounds to reverse based on Attorney A’s conflict of interest.

B. The Court Lays Down the Law – SHEPERD I

The Court began with a statement of the law, mainly citing Strickland V. Washington, 466 U.S. 668 (1984), when it wrote:

The Constitution guarantees criminal defendants the right to a fair trial. The Supreme Court has explained that one of the safeguards making trials fair is the right to counsel. In all criminal prosecutions, the Sixth Amendment declares, the accused shall enjoy the right to have the Assistance of Counsel for his defense. That’s no hollow guarantee. The Counsel Clause does not countenance empty suits; it requires effective assistance of counsel—the presence of competence and absence of conflicts.

Unfortunately, not all representations meet that standard. At times a representation may suffer from actual ineffectiveness—one that so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. That standard is satisfied when the defendant can show that (1) her counsel’s representation fell below an objective standard of reasonableness, and (2) that the deficiencies in counsel’s performance were prejudicial to the defense.

United States v. Sheperd, 27 F.4th 1075, 1082‑83 (5th Cir. 2022)(internal quotations omitted).

C. Conflicted Representation Reduces the Burden – SHEPERD I

The Court then continued the legal foundation of ineffective assistance of counsel as related to conflicts of interest.

That two-pronged test has a special application when a defendant argues that her representation was infected with a conflict of interest. One of the most indispensable duties that any counsel owes his client is the duty of loyalty. Counsel breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock duty of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.

But what about prejudice? Defendants still need to show it in actual-conflict cases. They show it, though, in a special way—by showing that their case is subject to a limited presumption of prejudice. Whether it applies boils down to one question: Did the conflict adversely affect counsel’s performance? That’s a lighter burden for defendants. Proving prejudice directly means showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. On the other hand, the limited presumption of prejudice in actual-conflict cases turns on whether the conflict adversely affected the representation. One way defendants can answer that mixed question of law and fact is through evidence that counsel’s judgment was actually fettered by concern over the effect of certain trial decisions on other clients.

The Government concedes there is no dispute that Attorney A operated under a conflict of interest. It also concedes that both it and Attorney A were obligated by rules of ethics to bring the conflict to the court’s attention. Still, that’s only the first half of Sheperd’s burden. She still must prove that Attorney A’s conflict adversely affected his performance. And on that question, on this record, we can’t tell one way or the other. (Sheperd I- 27 F.4th at 1083).

United States v. Sheperd, 27 F.4th at 83 (internal quotations omitted).

II. SHEPERD II

A. Results on Remand

On remand, the District Court was tasked with con‑ ducting “an evidentiary hearing on whether Shepherd’s lawyer’s conflict of interest—a conflict the Government knew about— adversely affected his representation.” United States v. Sheperd, 2022 U.S. App. LEXIS 22357,

*1, 44 F.4th 305 (5th Cir. 2022). The District Court answered the question in the affirmative, The Fifth Circuit sought out to determine the proper remedy in the case. Id. The Appellate Court did not appear to be impressed by the Government’s argument on the issue:

We ordered the parties to file letter briefs addressing any issues arising from the district court’s findings and conclusions, as well as the appropriate relief if any. The Government now concedes that Sheperd’s Sixth Amendment right to conflict-free counsel was violated and that some remedy may nonetheless be warranted. All that’s left, then, is to craft that remedy. The Government points us to the Supreme Court’s decision in Lafler v. Cooper, where the Court explained that Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. The remedy must neutralize the taint of the constitutional violation, but not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. For example, when a defendant declines a plea offer as a result of ineffective assistance of counsel and then receives a greater sentence as a result of trial, then the remedy could involve resentencing or ordering the Government to reoffer the plea deal, depending on the circumstances.

Applying those principles to this case, the appropriate remedy is to VACATE Sheperd’s convictions and REMAND for a new trial. That remedy may well cause the Government to spend considerable resources. But it is not needless. As the Government admits, it never offered Sheperd a plea deal while she was represented by her conflicted pretrial counsel, or after. So there is no rejected plea deal to measure Sheperd’s harm against. And while Sheperd did reject a plea deal well before her conflicted counsel began representing her, the Government argues we cannot order it to reoffer that bargain without violating separation-of-powers principles. So we’ll give the Government what it asks for, then, by avoiding any constitutional issue.

The constitutional right to counsel is perhaps the central feature of our adversarial system, as it helps make real the Constitution’s other criminal procedure promises. And it is not lost on us that the Government knew Sheperd’s pretrial counsel was conflicted yet delayed informing the district court about it—for months. The Government’s proposed remedy—to keep the convictions intact but remand for new plea negotiations—wouldn’t neutralize the taint of the constitutional violation. After all, what would encourage the Government to offer a reasonable plea when it could hold intact convictions over Sheperd’s head? Nothing.

We VACATE Sheperd’s convictions and REMAND for a new trial.

Id., pp. *1‑4.

Clearly, the Fifth Circuit could not stomach the unethical practice of a lawyer representing a defendant and a snitch in the same case. You might think that this case would have no applicability to you. If you have read this far, you are probably incapable of engaging in the kind of unethical activities demonstrated by Attorney A in Sheperd. However, it is possible for far more noble counsel to find themselves in a similar predicament.

B. Less Obvious But More Frightening Applications

Although the error made by Sheperd’s lawyer might have sounded ethical alarms with almost all lawyers, it is not hard to imagine how good lawyers could innocently straddle the same ethical line. The defendant arrested today may very well be a snitch, or even a witness, down the road. Seeing the name of a current or former client in a new client’s discovery is a common event. When that happens, all work on the case stops until the conflict question is resolved. As with most things legal, the starting point is the applicable rules.

C. What are the Rules?

1. Federal courts defer to the State or District Bar Association in which the Court resides. (See for example: Local Criminal Rule 57.8(e) Northern District of Texas, which defers to the Texas Disciplinary Rules of Professional Conduct for the definition of unethical conduct).
2. Texas Disciplinary Rules of Professional Conduct

1. 1. Rule 05. Confidentiality of Information
      1. Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer‑client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney‑client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
      2. Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:
         1. Reveal confidential information of a client or a former client to:
            1. a person that the client has instructed is not to receive the information; or
            2. anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.
         2. Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.
         3. Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
         4. Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.
   2. Rule 06. Conflict of Interest: General Rule
      1. A lawyer shall not represent opposing parties to the same litigation.
      2. In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:
         1. involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm; or
         2. reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.

3. Texas Rules of Evidence
   1. Rule 03 Lawyer‑Client Privilege
      1.  A “client” is a person, public officer, or corporation, association, or other organization or entity ‑ whether public or private ‑ that:
         1. is rendered professional legal services by a lawyer; or
         2. consults a lawyer with a view to obtaining professional legal services from the lawyer.

The definition of “client” under Rule 503 of the Texas Rules of Evidence is broad enough to cover any potential client that discloses any fact relevant to the case. It is clear from these rules that a lawyer could easily get entangled by talking with two defendants regarding the same conspiracy. In that situation, a lawyer cannot use information disclosed by either client to the advantage or disadvantage of either client. The lawyer is unable to do his job.

The likelihood of such a conflict is greatly increased when all defendants are not arrested at the same time. A lawyer could talk to one client months before speaking with another client, with both clients having been charged in the same indictment. According to the Rule 503, it does not matter if the first potential client did not retain the lawyer. If the lawyer consulted with the person with a goal of getting hired, that person is a client.

A similar conflict could arise when a person arrested provides information that implicates others who are subsequently charged. This often occurs in traffic stop or controlled buy situations where the first person arrested is charged individually and then spills the beans on the rest of the gang. A lawyer often does not get the full details of the client’s discussions with the Government until he receives discovery. At that point, the lawyer should have had several conversations with the client where confidential information would have been shared. Under one of these scenarios, a good lawyer could find themselves potentially in the same position occupied by counsel in Sheperd. This is a situation often encountered in smaller jurisdictions, but possible anywhere. Such a conflict affects retained counsel and appointed counsel equally. An appropriate action, declining representation or filing a motion to withdraw, to such conflict might financially burden the ethical lawyer, but the unethical lawyer may suffer greater consequences.

TAKEAWAYS

1. The reduced burden to demonstrate harm under the Strickland analysis is an important distinction for clients who have suffered conflicted representation. It is a “lighter lift” to demonstrate that the conflict affected the representation than it would be to demonstrate that a defendant would have been exonerated or that a lower sentence would have been pronounced, but for the error.
2. The discussion of the remedy for a conflict of interest in Sheperd II is a wonderfully uncomplicated statement of the law. The remedy must neutralize the taint of the constitutional violation by going back to the point where the case was untainted.
3. The Government’s lawyers took a scolding. All lawyers have a duty to report an ethical breach, and no party should benefit by abiding the infraction.
4. If you see a name that rings a bell at any point in the case, find out why before you move forward.
5. Screen potential clients for ability to pay prior to consultation. In a large conspiracy case, you only get one ticket. Don’t waste it on someone that needs appointed counsel.
6. Having a client sign a waiver of conflicts is inadequate; it is a band aid on a severed artery.
7. Decline or withdraw when you should. Being an ethical lawyer may hurt your bottom line, but your bar card is worth more than one case.

TCDLA