McCrimmon v. United States

853 A.2d 154 (D.C. 2004)



D.C. R. Prof. Conduct 1.7 prohibits a lawyer from representing a client in a matter in which the lawyer's judgment may be affected by duties to other parties without the client's consent.


Defendant appealed the decision of the Superior Court of the District of Columbia, which denied his two motions filed pursuant to D.C. Code Ann. § 23-110 (1996). The first motion, filed by appointed appellate counsel, requested a new trial based on claimed ineffective assistance of counsel. The second motion, filed by new appointed appellate counsel, made a different claim of ineffectiveness of trial counsel based on conflict of interest. On appeal, the key issue was whether, as a result of a discussion between defense counsel and a crucial prosecution witness over a tentative attorney-client relationship, defendant's appointed counsel operated under an actual conflict in violation of the Sixth Amendment right to effective assistance of counsel. The appellate court concluded that it could not resolve the matter without knowing whether defense counsel actually believed there was a conflict, or whether defendant understood the nature of the conflict when he consented to defense counsel's continuing representation. The decision of the trial court was reversed and the case was remanded to the trial court for an evidentiary hearing and findings of fact on the question of defense counsel's actual belief on whether he was ethically constrained in cross-examining the witness; its impact, if any, on defendant's consent to his continued representation; and whether it affected the defensive strategy followed in cross-examining the witness.


Did the trial court err in ruling that appellant's appointed counsel did not operate under an "actual conflict" in violation of the Sixth Amendment as a result of a discussion between defense counsel and a crucial prosecution witness over a tentative attorney-client relationship?




The evidence before the appellate court was inconclusive on the issue of defense counsel's belief. If defense counsel's decision not to more fully cross-examine the witness for bias was in any way affected by defense counsel's perception of a continuing obligation to the witness, defendant's reliance on defense counsel's judgment that he was "comfortable" continuing the representation would be undermined. In the absence of defendant's informed acquiescence, the trial court would have to conduct an inquiry if there was a "possibility of a conflict" to ascertain defendant's knowledge and informed consent.

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