A conflict of interest between a lawyer and a client is a terrible thing. Even an allegation that such a conflict existed at the time of the lawyer’s representation of the client can haunt the lawyer for years to come. The safest course to take when there is such an allegation is for the lawyer to run away and fight another day.
This truth came to mind as I read the opinion of the United States Court of Appeals for the D.C. Circuit in United States v. Lopesierra-Gutierrez, ___ F.3d. ___, 2013 WL 764974 (D.C. Cir. 2013) In that case, the Court held—as a matter of first impression—that a conflict of interest resulting from Lopesierra’s counsel’s alleged receipt of laundered funds as payment for legal service was not per se unwaivable. The Court affirmed Lopesierra’s conviction and sentence.
[The Background of the Case]
Samuel Santander Lopesierra-Gutierrez, a Columbian national, was indicted for conspiring to distribute cocaine with the knowledge or intent that it would be imported into the United States in violation of 21 U.S.C. §§ 959(a) 960, and 963. He was extradited from Columbia to the United States and sat in the courtroom for almost two months listening to the government introduce testimony about his participation in the conspiracy. He was found guilty and an unnamed United States District Judge imposed a below-the-guideline sentence of 300 months. Lopesierra gave notice of appeal.
The opinion of the Court was authored by Judge Tatel, a blind jurist who writes with great clarity.
Judge Tatel’s opinion reads, in part, as follows:
[The Bombshell]
Lopesierra’s first and most serious contention is that his trial counsel suffered from a conflict of interest that amounted to a Sixth Amendment violation that prejudiced his defense. Here’s what happened. Quite literally on the eve of trial, the government discovered that a cooperating witness would testify that, in the course of laundering money in the United States for Lopesierra, he had sent $96,000 to Lopesierra’s attorney to cover legal fees. This testimony was part of the government’s evidence regarding the statutorily required nexus between Lopesierra’s activities and the United States. The government informed the court about the potential conflict of interest, explaining that the witness’s testimony had spawned a Department of Justice investigation into whether the attorney had violated 18 U.S.C. § 1957, which criminalizes monetary transactions in property derived from unlawful activity. Arguing that the testimony and resulting investigation created an actual conflict of interest, the government moved to disqualify the attorney.
[The District Court’s First Status Conference and What Followed]
At a status conference the next day, Lopesierra’s attorney insisted that he had no intention of withdrawing, that the witness could testify without identifying him as the recipient of the laundered funds, and that Lopesierra could waive any conflict. Speaking for himself, Lopesierra told the court that he was happy with the attorney’s work and wanted him to continue. Following the conference, Lopesierra filed a response to the government’s motion, which was signed by both the purportedly conflicted attorney and a law professor from whom the attorney had sought advice. In that response, Lopesierra maintained that he had the right to continued representation by his counsel of choice notwithstanding the alleged conflict of interest. According to Lopesierra, the conflict could be avoided so long as the witness never mentioned the attorney by name. He also emphasized that he wished to waive any potential conflict of interest. In response, the government agreed that Lopesierra could waive the conflict—so long as he did so knowingly and voluntarily. The government also acquiesced to a stipulation about the laundered funds that omitted the attorney’s identity.
[The District Court’s Second Status Conference]
The district court then held another status conference, at which Lopesierra was represented by appointed conflict counsel and at which the law professor appeared by telephone. Both lawyers, as well as the government, agreed that Lopesierra could waive any conflict of interest. After considering both parties’ statements and submissions, the district court concluded that any conflict of interest was in fact waivable. It then proceeded to engage Lopesierra, again represented by conflict counsel, in a detailed waiver colloquy. In response to the court’s questioning, Lopesierra assured the court that he was aware of the source of the conflict, that he understood its nature, and that he knew he had a right to conflict-free representation. Lopesierra confirmed that he had been thoroughly advised by conflict counsel, insisted that he had carefully considered his waiver decision, and made clear that he understood he was waiving his right to later claim that he had been prejudiced by a conflict of interest. Given all this, the district court found that Lopesierra had “knowingly, intelligently, [and] voluntarily waived any conflict of interest.” Lopesierra’s original attorney went on to represent him at trial.
[Lopesierra’s Appellate Issues]
On appeal, Lopesierra, now represented by new counsel, argues that he was denied his Sixth Amendment right “to have the Assistance of Counsel for his defence,” U.S. Const. amend. VI, which includes a “correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Lopesierra begins by attempting to demonstrate that “an actual conflict of interest adversely affect[ed] the adequacy of [his] representation.” United States v. Taylor, 139 F.3d 924, 930 (D.C.Cir.1998) (citing Cuyler v. Sullivan, 446 U.S. 335, 349–51, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Only then does he turn to the question whether his waiver bars his claim. We begin with the decisive issue: waiver.
[The Concept of Waiver]
Criminal defendants frequently waive their constitutional rights. By entering a guilty plea, for instance, a defendant waives rights as fundamental as the “privilege against compulsory self-incrimination, [the] right to trial by jury, and [the] right to confront his accusers.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Of course, such waivers are subject to strict oversight by the court, which must find that they are made knowingly and voluntarily. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Like these other constitutional rights, the Sixth Amendment right to conflict-free representation is subject to knowing and voluntary waiver. See Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); see also United States v. Childress, 58 F.3d 693, 734–36 (D.C.Cir.1995) (per curiam). A defendant’s power to waive this right is grounded in another right situated in the Sixth Amendment: the right to counsel of choice. See Wheat, 486 U.S. at 160.
[The Two Sixth Amendment Rights and the Court’s Own Institutional Interests]
In cases like this, where a defendant’s chosen counsel suffers from a conflict of interest, the two Sixth Amendment rights come into clear conflict. Also implicated are the court’s own institutional interests, as guaranteeing conflict-free counsel protects not just defendants’ rights, but also the “[f]ederal courts[’] . . . independent interest in ensuring that criminal trials are conducted within the ethical standards of the [legal] profession and that legal proceedings appear fair to all who observe them.” Id. at 161. Taking the court’s interests into consideration, the Supreme Court has held that a defendant’s counsel-of-choice right may sometimes be trumped by a conflict of interest. See id. at 159 (“[T]he essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”). Specifically, a court may decline to accept a waiver if the conflict of interest jeopardizes the integrity of the proceedings. See id. at 162; see also Childress, 58 F.3d at 734–36. In making this determination, a court balances the defendant’s right to choose his representative against both the defendant’s countervailing right to conflict-free representation and the court’s independent interest in the integrity of criminal proceedings. Cf. United States v. Edelmann, 458 F.3d 791, 806–07 (8th Cir.2006). The outcome of that balance turns on the nature and extent of the conflict. We review a district court’s decision to accept or reject a waiver for abuse of discretion. See Childress, 58 F.3d at 734.
[Can the Conflict be Unwaviable?]
Attempting to get around his waiver, Lopesierra argues that his lawyer’s conflict of interest was so serious that it was simply unwaivable. Alternatively, he contends that, even if the conflict was waivable, his waiver was neither knowing nor voluntary.
***
[The Conflict Here Is Not Unwaivable.]
Alternatively and more narrowly, we take his position to be that such conflicts are unwaivable at least where the attorney’s supposed crime is related to the defendant’s.
***
Lopesierra points to no circuit that has accepted the proposition that attorneys who are the subject of criminal investigations are incapable of providing constitutionally adequate representation, and the government identifies numerous circuits that have rejected it. See, e.g., Edelmann, 458 F.3d at 806–08; Reyes–Vejerano v. United States, 276 F.3d 94, 99 (1st Cir.2002); United States v. Montana, 199 F.3d 947, 949 (7th Cir.1999).
***
This line makes sense. Whenever an attorney is or is likely to be the subject of a criminal investigation, courts worry that he might attempt to curry general favor with the government by pulling punches. Although this concern is serious, it hardly supports a conclusion that “no rational defendant would knowingly and voluntarily desire the attorney’s representation.” United States v. Martinez, 143 F.3d 1266, 1270 (9th Cir.1998) (internal quotation marks omitted). But when the attorney’s alleged criminal activity is “sufficiently related to the charged crimes,” Fulton, 5 F.3d at 611, courts have an additional concern: the attorney’s “fear that evidence concerning [his] involvement might come out” could potentially “affect virtually every aspect of his . . . representation of the defendant.” Id. at 613. For instance, the attorney’s advice to a defendant about whether to cooperate, plead guilty, or take the stand could be colored by the attorney’s calculations about the likelihood that the defendant’s cooperation or testimony would reveal evidence of his own crimes.
Given the seriousness of this kind of conflict, we might agree . . . that when an attorney is accused of a “sufficiently related” crime, the resulting conflict “create[s] a real possibility that the attorney’s vigorous defense of his client will be compromised.”
***
But that is not this case. Lopesierra’s attorney was accused only of accepting payment for his services in laundered funds. True, those laundered funds were allegedly the product of the charged cocaine-importation conspiracy. That, however, was the full extent of his supposed connection to Lopesierra’s crimes. Although the attorney’s alleged criminal activity thus in some sense “related” to Lopesierra’s, we see a significant difference between an attorney who conspired with the defendant to distribute drugs and one who was merely paid in laundered funds. In the former case—where it is impossible to discern, for instance, which witnesses the attorney might decline to call or hesitate to cross-examine for fear they will implicate him—every single aspect of representation could be infected, every choice suspect. But where the relationship between the attorney’s alleged crime and the defendant’s is as attenuated as here, the extent of the conflict is clear and can be mitigated by stipulation. A rational defendant—who may well have been responsible for and fully aware of the fact that his attorney was paid with profits from unlawful activity—could thus make an informed choice to proceed in such a circumstance.
[The Court’s Holding]
Accordingly, we hold that where the only relationship between the attorney’s possible crime and the defendant’s is the receipt of laundered funds and where a stipulation bars presentation of incriminating testimony, the resulting conflict is not per se unwaivable. See United States v. Saccoccia, 58 F.3d 754, 771 (1st Cir.1995)(upholding waiver where the attorney allegedly “conspired with appellant to launder the fruits of unlawful activity”). In cases such as this, the knowing and voluntary requirement, coupled with the abuse of discretion standard, strikes the appropriate balance between protecting defendants from conflicted representation and preserving their right to counsel of choice. If in the context of a particular case the district court believes a conflict is intolerable, it may decline to accept a defendant’s waiver. But here, where the conflict was less serious, the district court acted well within its discretion by concluding that Lopesierra’s right to counsel of choice carried the balance.
[Lopesierra’s Waiver Was Both Knowing and Voluntary]
This brings us, then, to Lopesierra’s fallback position—that his waiver was neither knowing nor voluntary. But we have no doubt that it in fact was both. The district court held multiple hearings on this issue and went to great lengths to ensure that Lopesierra, who was represented by an independent attorney, was fully aware of the nature of the conflict and the consequences of waiver. The court explained, for instance, that because the attorney was himself the subject of a related criminal investigation, he might “have a divided loyalty between his interests and [Lopesierra’s] interests” and could “be in some way tempted to take actions that might not be to [Lopesierra’s] benefit in order to assist himself in connection with this other investigation.” It further emphasized that Lopesierra had a right to an attorney who lacked such a conflict and warned that “going forward could be ill-advised.” In response to all of this, Lopesierra repeatedly told the court that he was “100 percent” determined to continue with the attorney who had been representing him for three years. He also assured the court that he understood he was waiving any argument that he was “in some way prejudiced because [the attorney] had this conflict of interest.”
[The Usual Conclusion in These Cases]
We cannot conceive of—and Lopesierra fails to suggest—anything more the district court could have done to protect his rights. In the end, Lopesierra made a rational and informed decision that, given the stipulation and the limited nature of his attorney’s conflict, he wanted to proceed. That he now wishes he had chosen differently gives us no reason to doubt the validity of that choice.
My Thoughts
- So, what’s the rest of the story? I spoke with Carmen D. Hernandez, who was appointed by the Court to represent Lopesierra on appeal, and she answered that question. No charges have been brought against Lopesierra’s trial counsel. He is a well-respected member of the Bar of the District of Columbia and will not face criminal prosecution.
- It is, perhaps, for that reason that the opinion never mentions him by name—which I found most unusual as I read the opinion.
- Was it worth $96,000 to go through the trauma of a two-month trial and embarrassment that the lawyer must have experienced while this case was on appeal? Only the lawyer can answer that question.
