Is it a conflict for an accused to be represented by a part-time DC/part-time TC?

CAAF granted review of another interesting issue today: "WHETHER CAPT [R]'S FAILURE TO DISCLOSE HIS CONFLICT OF INTEREST RESULTED IN AN UNINFORMED AND INVALID ELECTION OF COUNSEL." United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. Nov. 20, 2007). Captain Lee's appellate defense counsel who obtained the grant is Eugene Fidell the Sagacious.

The Navy-Marine Corps Court's unpublished opinion, which is quite interesting, is here. United States v. Lee, NMCCA 200600543 (N-M. Ct. Crim. App. June 26, 2007). Here is the opinion's discussion of the conflict issue:

Conflict of Interest of Trial Defense Counsel

The appellant contends that his military trial defense counsel failed to disclose a conflict of interest in acting as a prosecutor in another case at the time of the appellant's trial. He urges us to set aside the findings and sentence on the basis that this situation resulted in an invalid election of counsel by the appellant. We disagree and decline to grant the requested relief.

Facts

The appellant contends that his military trial defense counsel, Capt Reh, failed to disclose that while the appellant's trial was in progress, he was also serving as assistant trial counsel in a prosecution for which the lead prosecutor was the trial counsel in the appellant's case, Maj Keane. The appellant claims that the two counsel worked together as prosecutors in an Article 32, UCMJ, proceeding the week before the appellant's trial. The appellant alleges that he did not learn of this situation until after his court-marital proceedings were completed. The appellant concedes that Capt Reh informed him in February 2005 that Capt Reh would be prosecuting minor offenses involving drugs and unauthorized absences as he transitioned off of active duty. The appellant also concedes that, based on this disclosure, he agreed that Capt Reh should continue to represent him. The appellant was also represented by civilian counsel throughout the proceedings.

Law

A military accused is guaranteed the right to effective assistance of counsel under the Sixth Amendment and Article 27, UCMJ. United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994). This right includes the right to counsel free from conflicts of interest. United States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994). To demonstrate a Sixth Amendment violation, the appellant must establish (1) an actual conflict of interest, and (2) that this conflict adversely affected his lawyer's performance. United States v. McClain, 50 M.J. 483, 488 (C.A.A.F. 1999).

Analysis

We find this assignment of error to be without merit. We find no actual conflict of interest in this case. The appellant acknowledges that Capt Reh advised that he would be prosecuting cases at the same time he was representing the appellant. Following this disclosure, the appellant decided that he wanted Capt Reh to continue to represent him, along with civilian counsel. The mere fact that Capt Reh ultimately worked as a trial counsel on a different case with the trial counsel on appellant's case does not by itself create an actual conflict of interest. Moreover, the appellant fails to identify any connection between the fact that Capt Reh and Maj Keane worked together as prosecutors on a completely unrelated case and the representation he received at his court-martial. To the contrary, all evidence in the record indicates that the appellant received excellent representation from his civilian and military trial defense counsel throughout the court-martial process. Additionally, the appellant's civilian counsel was the lead counsel throughout the appellant's trial.

The appellant urges us to apply an "inherent prejudice" standard to his case. Certain cases involving concurrent representation of multiple clients have been treated as inherently prejudicial. See Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Also, in United States v. Cain, 59 M.J. 285, 295 (C.A.A.F. 2004), our superior court found that the situation in that case was inherently prejudicial because it involved "an attorney's abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney's client was on trial," all of which was left unexplained as a result of defense counsel's suicide. Cain advised, however, that "most cases will require specifically tailored analyses in which the appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland." 59 M.J. at 294. We find that the application of an inherent prejudice standard to this case is clearly not warranted under existing case law. United States v. Nicholson, 15 M.J. 436, 438 (C.M.A. 1983); United States v. Hubbard, 43 C.M.R. 322, 325 (C.M.A. 1971); see Cain, 59 M.J. at 294.

Conclusion

Because the appellant has failed to establish the existence of any actual conflict of interest and failed to show that the alleged conflict adversely affected his military trial defense counsel's performance, we find no merit in this assignment of error.