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The finding of an actual conflict is only a first step in determining whether a defendant has established his claim of ineffective assistance of counsel. He must also show that the actual conflict adversely affected his attorney's performance by demonstrating that a lapse in representation resulted from the conflict. To prove a lapse in representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests. A defendant is not required to show that the lapse in representation affected the outcome of the trial or that, but for the conflict, counsel's conduct of the trial would have been different. The forgone strategy or tactic is not even subject to a requirement of reasonableness.
Shortly after the assault on Abner Louima in August 1997, the law firm that represented the Policeman's Benevolent Association ("PBA"), the police officers' union, hired Stephen Worth and Stuart London as trial counsel to represent Schwarz and Bruder respectively. Both attorneys were hired as outside conflict counsel to avoid any conflicts of interest that might arise if the PBA's regular retained law firm were to represent multiple defendants. Worth's and London's fees were to be paid by the PBA. In February 1998, after Schwarz had been indicted by the federal grand jury, Worth, London, and some other attorneys formed a law firm, Worth, Longworth & Bamundo, LLP (the "Worth firm"). In May 1998, the Worth firm entered into a two-year $10 million retainer agreement with the PBA (the "PBA retainer") to represent all police officers in administrative, disciplinary, and criminal matters as well as to provide them with civil legal representation. After entering into the PBA retainer, Worth and London agreed to continue their representation of Schwarz and Bruder without charging further fees beyond the PBA retainer. Shortly after learning of the formation of the Worth firm and its agreement with the PBA, the government wrote a letter to the district court to advise it of potential conflicts of interest arising from the joint representation of Schwarz and Bruder by partners in the same law firm and from the Worth firm's PBA retainer. The government urged the district court to conduct a hearing pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). Schwarz and Bruder submitted identical affidavits stating that they understood the potential conflicts raised by being represented by attorneys from the same law firm. The affidavits made no mention of any potential conflicts that might arise in connection with the PBA retainer. The government, Worth, and London filed additional letters with the district court fleshing out the areas of potential conflict. They also urged that there was no unwaivable conflict. The only conflict presented, they argued, arose from the joint representation of Schwarz and Bruder by the Worth firm--a conflict that could be waived by the defendants. The district judge concluded his advice by observing that "it would be unrealistic to suppose that the beneficiaries of a ten-million-dollar contract, which evidently the firm hopes will be renewed in the year 2000, would be indifferent to the welfare of the PBA." Following the hearing, the district court issued an order scheduling a Curcio hearing, appointing independent counsel to advise Schwarz and Bruder, and prohibiting the Worth firm from representing the PBA or any of its members other than Schwarz and Bruder in the Louima civil suit. The police officers were convicted, Officer A for conspiracy to violate and violation of the civil rights of a man, whom they had arrested, in violation of 18 U.S.C.S. §§ 241 and 242, and all three officers for conspiracy to obstruct justice in violation of 18 U.S.C.S. §§ 371 and 1503. All three appealed.
Was an unwaivable actual conflict of interest established which adversely affected the attorney's performance?
The court held that an unwaivable actual conflict of interest was established which adversely affected the attorney's performance in that, for no plausible tactical reason, counsel failed to present exculpatory evidence that could have changed the outcome at trial. The court felt that the only possible explanation for this failure was the conflict. Moreover, the jury's exposure to extrinsic information during deliberations, considered with other circumstances in the case, gave rise to a reasonable probability the outcome of the trial would have been different. Thus, the district court erred in denying an evidentiary hearing on the matter. Insufficient evidence was presented to support the conspiracy to obstruct justice convictions.