*1 part, part, in necessarily AFFIRMED VACATED counts which was these added REMANDED. Quintero’s in the first favor decided money involve Although counts and 27 account, bank from Swiss
transferred (which in- count 21 acquittal on money from the Swiss
volved the transfer account) government not
bank does bar 27. retrying Quintero 25 and on counts
Quintero argued that he not involved money bank from the Swiss
the transfer Remy’s The evi- trust account. account FREUND, Petitioner-Appellant, S. John Quinte- Remy, that it was not dence showed ro, money trans- requested that be who But the Swiss bank account. ferred from BUTTERWORTH, Attorney A. Robert prove government did not the fact that General, Respondent-Appellee. trans- Quintero conducted the financial trying preclude it from action does No. 93-5317. Quintero subsequent trans- financial deposits involving Appeals, from the Swiss actions United States Court of Eleventh Circuit. personal account account to bank $25,000 pay of credit. using off a line Jan. presented and docu- government direct in- showing Quintero’s mentary evidence Thus, those transactions.
volvement acquittal on count 21 does not resolve
an ultimate issue counts 25 and jury’s
Additionally, the determination
Quintero agree participate in the did not 1956(a)(1) gov-
§ conspiracy not bar does Quintero trying the sub-
ernment from 1956(a)(1) charged in §
stantive offenses 31, 33, 25, 27, 30, of the third
counts and 34 agree- indictment
superseding because 1956(a)(1) § an ulti- is not
ment violate Similarly, an
mate fact these counts. 1956(a)(1) §
agreement to violate is not conspiracy to or element of a
ultimate fact 1956(a)(2)(A). Accordingly, § collat-
violate estoppel apply counts.
eral does to these and our
Based on our review the record estoppel principles, collateral
application of
we court’s affirm the district 18(b), 18(c), refusing
order dismiss Counts superseding indictment. 19 of the third
However, part of the order we vacate that 18(a), 27, 30, 31,
dismissing Counts superseding the third
and 34 of indictment proceedings this ease for
and remand further opinion. with this
consistent *3 Gables, FL, Morris, for Peti-
Paul Coral tioner-Appellant. Fried, Asst. Flaherty, Myra J.
Melvina Beach, FL, Gen., for Re- Palm Atty. West spondent-Appellee. HATCHETT, Judge, and Chief
Before EDMONDSON, TJOFLAT, ANDERSON, BLACK, BIRCH, DUBINA, COX, MARCUS, CARNES, Circuit HULL and Judges.
HATCHETT,
Judge:
Chief
appeals
Freund
John
Appellant-petitioner
petition for
of his
court’s denial
the district
pursuant to 28 U.S.C.
corpus
of habeas
writ
jury
court
Florida state
§
first-degree murder
convicted
Ralph
Walker.
stabbing death
petition was that he
crux of Freund’s
right under the Sixth
his
deprived of
assis-
to effective
Amendments
Fourteenth
lawyers
because his
trial counsel
tance
of interest
significant conflicts
under
labored
rep-
from their
primarily
that stemmed
non-testifying, sepa-
resentation
codefendant,
Ad-
Trent.
John
rately-tried
concerning
issues
dressing
impression
first
standard
of law and
applicable rules
and no
review,
finding
conflict
no actual
effect,
affirm.
we
adverse
murder, he
the time of the
area. Around
FACTS1
I.HISTORICAL
Palm Beach
apartment
in an
at the
lived
on the
Persons
Background
Six
A.
Although
building
doorper-
had a
Hotel.
at the Murder Scene
Present
security
son,
attendants
front desk
John Freund
usually
his door
answered
guards,
pistol. When
loaded .45 caliber
waving a
practiced oncol-
John
Before
visited, he often had them use cocaine
Beach,
friends
cancer, in Palm
treatment of
ogy, the
any-
immediately before
did
him
enjoyed
reputation
excellent
Florida. He
thing else.
community
profes-
for both his
in the medical
personal demeanor.
expertise and
sional
to have ties with the local
Trent claimed
colleagues, Freund
to most of
Unknown
*4
through his work as a confidential
police
depression.
In
from severe bouts
suffered
bragged that he had the
He
informant.
home,
1983,
attempted suicide at
he
June
Department and
Palm Beach Police
West
large doses of narcot-
injecting himself with
County
“in his
Beach
Sheriffs Office
Palm
unconscious,
him
found
police
A
officer
ics.
significant influ-
pocket.” He
back
wielded
and CAT
subsequent psychological tests
persons, using them
other
ence over several
significant brain
brain indicated
scans of his
drug dealings,
prosti-
work as
further his
Among
oxygen.
a lack of
damage due to
tutes,
him,
out” those who
entertain
“take
memory,
impaired
symptoms were
Freund’s
perform
him trouble and
various other
gave
behavior,
intelligence, inappropriate
reduced
at
persons
such
tasks. Four
plan-
foresight and
judgment,
lack of
poor
night
apartment,-along with
on the
influences, and a
amenability to others’
ning,
murder:
three testified
Freund’s
appreciate the
ability
reason and
reduced
trial and the fourth was the victim.2
Consequently,
actions.
consequences of his
suspended, and never
care officials
health
3.Eleanor Mills
reinstated,
privileges.
hospital
was Eleanor
persons
The first of these
Trent
John
ran a female escort service and
Mills. Mills
attempt, Freund be-
the suicide
Before
drugs.
early
In
an
frequently used
Trent,
of his
the son of one
friended John
police officer arrested her after
undercover
and Trent’s
patients. Although Freund
kilogram
him a
of co-
attempted
she
to sell
they
point,
rekin-
friendship
at some
soured
detention,
pretrial
Mills met
caine. While
attempt. Trent
suicide
dled it after Freund’s
Trent,
suggested that
then a
someone who
regain
hospital
promised
help
his
Mills,
help
stranger
could
her with the
enjoyed
reputation
privileges. Trent
April
In
weeks
drug charges.
several
illicit,
though
influence
wielding significant,
murder,
released Mills
the court
before
community.
in the Palm Beach
bail,
arranged to meet Trent at
and she
practice,
design
apartment.
his usual
legitimate
interior
Trent owned
they
greeted
gun
Mills with a
hand and
Draperies, but his
called House of
business
immediately
Impressing
consumed cocaine.
a full-time criminal. He
occupation
main
(both
community,
power in
drugs
with his
heavily in
use Mills
involved himself
First,
ways.
sale),
help in
he
offered
at least two
prostitution.
When
violence
(Foley,
Mills to the law
Colton
properties failed
referred
tenants of his several rental
P.A.)
Duncan,
him.
time,
represented
them and
pay their rent on
Trent had
Second,
having
discussed
her serve as
kept
than one resi-
assaulted. Trent
more
(and
police.
with the local
girlfriend)
the Palm Beach
informant
dence
persons
testified at Trent’s
2. These three
much
the factual and collateral
1. We borrow
background
preceded
verbatim from
trial. Trent and
review
information
which
Freund's
Butterworth,
panel's opinion.
See Freund v.
testify
at either trial.
Freund did
(11th Cir.
117 F.3d
1997), vacated,
1547-70 & nn. 1-60
(11th Cir.1998)
5.Bill Daniell later, arrived. thirty minutes Walker About all snorted co- party continued: four third material witness Bill Daniell was the caine; marijua- Angelilli and Walker smoked ex-convict, An Daniell trial. at Freund’s bourbon; na; drank Trent drank Walker Draperies as an electri- at House of worked drank and snorted more tequila. Walker jobs” for performed several “odd cian and than the others. Trent, trafficking. He had including drug years, and for over thirteen known Trent point, Trent and started At some Walker *5 bodyguard him as his introduced Trent often past exploits. Trent and Walker to discuss “hit man.” and escalating increasingly loud. The became very Mills nervous. of tension made level 6.Ralph Walker night, p.m. p.m. and Between stabbing Finally, Ralph Walker was Angelilli that he wanted whispered to Walker tasks for performed various victim. Walker ignored her. she have sex with When Trent, drugs collect- He obtained for Trent. yelled him, jumped around and got upset, he that Trent properties ed rent on various implored Trent to at her. Mills obscenities Trent want- assaulted whomever owned and down, assured her but Trent calm Walker Trent, had a vio- Like Walker ed harmed. just “playing around.” was that Walker temperament. lent Walker, however, enraged. became more bat from an aluminum baseball He retrieved B. The Murder4 it onto the and slammed Trent’s bedroom Preceding Events everyone that announced to table. Walker Angelilli, and have sex with going he was surrounding the mur- of the events Most ignore it. just have to Trent would at Trent’s Palm that occurred der of Walker magnum picked up the .357 then in the Walker apartment. Hotel Sometime Beach Angelilli moved toward July from the table and early evening Tuesday, afternoon in the in hand and the bat gun one Angelilli arrived at with Mills and frightened and Mills became Angelilli other. Trent had invited Mills apartment.5 Trent. Trent hide behind and tried to come over so that he could Angelilli to and magnum out Walker’s Angelilli. knocked the .357 them and meet cocaine with use for the .45 reached course, his hand. When Walker the door with Trent answered Of holster, pulled out Trent Trent’s shoulder The entrance to the pistol hand. .45 Walker fired it toward Walker. A first and through the bedroom. apartment dining bullet hit a over a couch. The dining to a dived hallway led from the bedroom room”) (the chair, Trent missed Walker. room but living area “main and room room court, testimony light most favorable Angelilli their trial testified in 3. At the time she the State. eighteen years old. unclear. Mills of arrival is following 5.The exact time factual account of 4. We derive the they Mills, police arrived at 3 initially testimony told An- Walker's death from the they did not at trial that p.m., she testified We note but gelilli Daniell at Freund's trial. they Angelilli p.m. testified that light arrive before conflicted. where their conviction, however, p.m. at 4 view arrived we must Freund's couch, pills pointed gun at crushed the around the bottle of vodka. Freund walked head threatened to kill Walker. that he in the powder Walker’s into a dissolved vodka. Freund, Trent Daniell all took turns Walker, Keeping pointed at Trent the .45 After injecting Walker with the mixture. an get pair out instructed Mills to handcuffs injection, would Walker lose consciousness As Mills retrieved the of his kitchen closet. revived, they short time. When he handcuffs, con- she noticed closet inject again. him pills. guns, Trent instruct- tained knives gun while handcuffed ed Mills hold gruesome These events overcame Mills his back. then Walker’s hands behind Trent Angelilli, from the who retreated main Angelilli bring fight- him the told Gerber They room to Trent’s bedroom. could still ing knife from the closet. With the knife groaning agony, hear Walker other, pro- gun one hand and Trent begged Trent to let them Trent leave. re- (but Walker, lunge to kick ceeded fused, he and a but hotel doorman escorted stab) repeatedly yell him knife and with the apartment them to another within hotel. threats, Ralph dead including “You’re Walk- later, Approximately twenty minutes when you’re goin’ You’re ... and home er! dead returned, Mills, Angelilli Mills and Trent told your He gagged mama in a box.” take him “We had to out. He knows too strapped tape Walker with towel and duct much and we had run an air bubble to his mouth. around Walker’s vein.” point, picture. At entered the Freund injected Freund and Trent air had indeed called Daniell and Bruce Full- Walker, into but it did kill him. erton, henchmen, another his for assis- one of expressed surprise to Daniell and Trent come over tance. asked injections the air not caused bag” “little to sedate Walker. with his black *6 After watching embolism. Freund and Trent bring Trent told to come over and his Daniell repeatedly pull plunger way the all out the “piece.” bring He Fullerton instructed syringe pop stuck Walker’s arm and the trunk, sledge hammer a chain steamer and plunger hilt, in to the back Daniell decided Freund Daniell Trent’s saw. and followed joined anymore could not watch and instructions, ignored but Fullerton them. stayed the in the women bedroom. Freund first, minutes Freund arrived about fifteen Walker, room with the main while Trent (but kill) phone after the call. To sedate not split the time between main room and the ordered, injected as Trent Walker Freund bedroom. magnesium with sulfate from his Walker bag.6 shortly Daniell arrived after Stabbing 2. The injecting Freund while was still Walker.7 Walker, got When Daniell close to he heard bedroom, From the saw Daniell Freund through him mumble duet tape, the “Don’t pick up fighting as Trent’s Gerber knife if multiple injections, kill let them me.” After toy” “he found a new and walk in had magnesium Freund ran out of sulfate. Walk- of Walker. direction Trent entered bed- er was still conscious. room. asked Freund Daniell him what was replied diazepam doing, Trent found and Trent that Freund some his kitchen “was gave He along probably fucking Ralph closet.8 it to Freund awith in the ass.”9 Magnesium drug Diazepam a mild sulfate is muscle relaxer. is a used to counter the Oncologists frequently drug anxiety use this treat and effects of alcohol withdrawal. symptoms arising chemotherapy and to re- plenish magnesium body with lost jury 9. At Freund's court instructed during therapy. hearsay disregard Daniell’s re- counting quote this statement. Trent’s We out- arrived, 7. Daniell was when he soon not for sober but of-court statement the “truth mat- Trent, asserts, joined Angelilli consuming point ter" Mills and that he but to out that Trent cocaine. Freund did not use cocaine at Trent's was Walker, in the main room when Freund stabbed apartment knowledge night. expressed The record not re- and that Trent no does cocaine, killing veal whether that Freund him. Freund used other Daniell was Fla. intoxicant, (1998). (l)(c) § before he arrived. Stat. 90.801 them, joined began the three soon and Angelilli to the bath- point, At one walked however, They, left up apartment. way, see into the clean her she could room. On body the floor behind the couch. Although could not see Walker’s on room. she main removing and Fullerton discussed was the floor behind Trent because he Walker couch, body Freund in a steamer trunk. Freund arrived at could see Freund. she Thursday laughing apartment around a.m. morn- in his hand. He was had the knife Trent, stabbing ing. motions Freund and Mills sat around making up-and-down cocaine, dining snorting drinking Although Angelilli appar- room table couch. behind the landed, talking They the knife for several hours. dis- ently could not see where body. stabbing dispose of cussed how to Walker’s positive that Freund she Horrified, During night, Freund acted oblivi- Angelilli ran into the entire Walker. returning corpse sprawled close to ous to Walker’s and vomited before bathroom dining room table. Freund left the bedroom. early Thursday apartment sometime morn- Daniell, Trent, thereafter, Shortly when ing. bedroom, Angelilli in the Mills and room with blood on walked into the Freund body main remained room said, over.” Trent told “It’s his shirt Thursday. During this throughout much of wearing the that he could not leave time, Freund to kill Mills An- Trent threatened change bloody him to shirt and instructed they anything police. if He gelilli said washing his After into one of Trent’s shirts. that he the local also reminded them shirt, putting on a clean hands and Similarly, Trent police under his control. Freund warned Mills and started to leave. family kill Daniell’s he did threatened to him that Angelilli that had not seen body. help Trent conceal the At one door, way he told night. out On Angelilli point, Trent told that Walker had Trent, pleasure doing business with “It was a much. to die because he knew too deserved again.” telephoned about you. Call me He afternoon, Thursday Late after that he twenty minutes later to inform Trent apartment, Fullerton and his friends left the safely. home Trent let Mills had arrived sledgehammer a steamer arrived with a stayed Angelilli go home. Daniell purchased with Trent’s trunk that he had morning. point, At one through the next sledgehammer to girlfriend. Trent used the body living room Daniell saw Walker’s *7 body legs that his would so break Walker’s pool in a of blood. Trent closed Walker’s fit in the trunk. Once Trent, Fullerton, trunk, and body in Mills Body Disposing of Walker’s 3. Trent carried it to Trent’s another friend of day, Wednesday, Daniell drove The next Draperies. House of and drove to van Draperies pick up Trent to House of They to the Palm van. drove the van Trent’s Investigation Police C. bicycle that Beach Hotel to retrieve Walker’s Angelilli’s Cooperation 1. Mills’s and building. in front of the After he had left and the Police’s Searches Draperies, unloading bicycle at House of apartment Daniell drove to the Trent and Saturday, July morning They made ar- girlfriends. Trent’s one of police.10 to call the Angelilli Mills and decided Fullerton rangements girlfriend for the and surrounding the They related the events purchase a steamer trunk find police where to stabbing and told the body from Trent’s use to remove Walker’s police body. They not tell the did Walker’s apartment. day, Later Daniell’s involvement. about body in police discovered Walker’s up from the day, picked Mills Trent Later beginning Draperies, van at House of him the Trent’s Draperies and drove House of investigation. their apartment. Fullerton Palm Beach Hotel They thus that officer. he did not trust They squad had Mills that called the vice officer who unlikely be under Trent's thought trafficking charges. that he arrested Mills on cocaine influence. They Trent had earlier told chose him because Angelilli’s story. Also, Angelilli’s and- corroborated and on Mills’s and state- Mills based ments, police physical obtained and executed In addition to the evidence found at Draperies Draperies, for House of and apartment search warrants Trent’s and House of apartment. Beach Hotel At Trent’s Palm police had material witnesses three will- Draperies, police found: Walk- House of testify ing to about Walker’s murder. The decomposed body in the badly steamer er’s Mills, Attorney’s charge Office did not State van; empty beer trunk in Trent’s boxes Angelilli any resulting Daniell crime or with bottles; bags liquor trash contain- cans and their in the murder involvement wrappers, empty drug ing syringes, needle disposition corpse.11 of Walker’s magnesi- empty ampules four capsules and They um also discovered Trent’s sulfate. D. The Law Firm on the van. fingerprints and Fullerton’s years, thirteen For Trent extensive apartment, police At Trent’s found: dealings Foley, firm of pistol in a with law Colton tape; duet a loaded .45 shoulder firm”) Duncan, (the holster; pair a magnum pistol; a loaded P.A. .357 “law law—the handcuffs; diazepam bottles of eventually represent firm that would Trent; sledge- prescribed Freund had 1970s, early Foley trial. In the Robert bat; hammer; a dented aluminum baseball began representing in various criminal it; lodged in dining room chair a bullet matters, Roger and civil as did Colton and human blood fighting knife with on Gerber Douglas they joined Duncan after law towels; blade; bag of blood-soaked Overall, May firm. until the law firm fingerprints. empty can an beer with Mills’s represented Trent cases and in various ca- pacities ranging from civil collection actions Autopsy involving House Draperies Trent’s searches, Shortly after the the coroner Additionally, hotels to criminal matters.12 performed autopsy body. Walker’s time, during this firm and the law straight found wounds The coroner five stab relationship often attorney exceeded that of chest one into his lower into Walker’s employees and client. and his came inward upward that extended to- back basis, daily sharing on a the office the law heart. concluded that ward the The coroner copier equipment. and other office penetrated these stab wounds Walker’s heart performed design Trent also interior work and, therefore, death. The coro- caused his firm, Colton, Foley, for the and Duncan’s injuries to ner also noticed handcuff Walker’s parents. tape duet his mouth. Walk- wrists and over employees many Trent referred of his body high levels of co- er’s fluids revealed friends, caine, including Mills, diazepam. law firm! Ap- alcohol and a derivative marks, did not needle proximately The corner find two the stabbing, months before sug- *8 decomposition one area but advanced Mills met with Colton at Trent’s Palm Beach gested Walker have received multi- apartment an hour Hotel for less than and ple injections. explained to him the facts and circumstances trafficking charge. of her cocaine Colton and Flight Cooperation 3. Trent’s and Daniell’s provid- possibility Mills discussed the of her ing police. police body, assistance Colton and After the Walker’s discovered began eventually ap- professional relationship Trent fled to Illinois. Daniell Mills’s police proached meeting.13 about his involvement ended with this did, however, however, Attorney’s allege any 11. The State does not conflict of Office de- interest lay trafficking cocaine case until after stemming representation. Mills’s from that conclusion Freund’s trial. The record does Attorney’s whether not indicate the State Office 13.Also, 1988, prior to Trent referred Daniell to prosecution. ever resumed that a the law firm for on traffic viola- speeding. tion Trent, representing addition to firm 12. Freund, represented Trent’s mother’s estate. stabbing from Illinois after the represented May- until called Colton firm Trent The law 1984, did not discuss the facts months before for advice. Trent approximately three 19, 1983, earlier, murder, stabbing. yearA on June offered no advice and Colton gun public on a allegedly a a suggesting Trent brandished than that Trent was in lot other persons. threatened to kill two street and trouble he should surrender speed- Trent was alleged facts were that represent Roth continued to authorities. recklessly through a residential area ing throughout his murder trial. Trent halt. to a A woman the last screeched Freund to the law firm for advice went apartment of her name of Vana came out stabbing.15 At that first meet- soon after the neighborhood fearing Trent had struck Foley that he ing, Freund confessed why driving he was asked Trent child. Vana Walker to death. The law stabbed told him that small like that and children him, and agreed to Freund surren- defend her to mind played in the area. Trent told 31, July on dered to the authorities 1984. get hurt. her own business or she would arrest, days Ten after Freund’s authorities approached, Trent husband When Vana’s arrested Trent in Illinois. The court de- handgun pulled a holster in his out a from bail, and on tained Trent and Freund without and asked her if she “wanted waistband 23, 1984, jury August grand indicted both other,” gun motioning to a that he one or the first-degree murder of for the Walker.16 area. supposedly had his back waistband later, days advised of the assault inci- A few E. Freund Prosecution of and Trent dent, in his police stopped Trent car. diazepam in The officers discovered Trent’s 1. Press Conference for, police possession. The arrested Trent days arraign- after the Two or three court charged Attorney’s him the State Office press Foley called a conference ed with, aggravated possession diazepam rely on an to announce that The State also initiated forfeiture assault. however, insanity Formally, defense. against automobile in re- proceeding rely law firm file a notice intent to did not possession charge.14 lation to the nearly year until insanity defense firm, Colton, primarily initially The law later, time, By that June 1985.17 aggravated Trent represented in both the only to also to Foley, had but admitted diazepam possession prosecu- assault had Duncan he killed Walker. Freund tions, no but it withdrew as counsel later psychiatrist told that he stabbed prior May than to their resolutions. it. told him to do Walker because Mounts, Marvin Palm Beach The Honorable over County Judge, presided these Circuit Discovery and Freund’s prosecutions. repre- Colton and Duncan also to Sever Motion proceeding, the forfeiture sented Mounts, Judge through final also before assigned Trent and The clerk of court May judgment issued Mounts, Judge Freund’s case to murder judge presided earlier over Although David same who Trent had retained Roth assault, drug possession and forfei- aggravat- Trent’s defense counsel in his as substitute eases, hearings to possession proceedings. ture After several diazepam assault and ed instrument, sharp con- peti- with a other derive these ER knife or 14. We facts 782.04(l)(a).” trary corpus. Statute tion for writ of habeas Freund never Florida *9 proved any hearing. at these facts fact, press the time of the confer- 17.In around who, 1984, ence, 7, anyone, does if a September 15. The record not reveal the law firm filed on Filing the law Freund. of recommended firm to Time Notice "Motion to Extend Insanity,” con- Rely the Defense of Intent to on tending presently position to alleged "not in a Specifically, that that it was indictment unlawfully particularity if ... was in- pre- [Freund] state with Freund and Trent "did from a ..., alleged if design to a at the offense effect the death of human sane time meditated WALKER, insanity.” appar- The court being, so the nature of kill murder RALPH a hu- being by ently granted stabbing the motion. the said RALPH WALK- man Although Judge Bar. flict from the Florida competency to stand tri- determine Freund’s eventually al, competent severed Freund’s him on Mounts Judge Mounts declared trials, thereafter, 5, the record does not disclose February two con- Trent’s 1985. Soon ruling issued a on this during pretrial arose whether he ever issues flict-of-interest (Freund’s) motion. proceedings. deposi- issue arose at The first conflict Opinion 3. Florida Bar 16, April 1985. Mills refused tion on Florida Bar Duncan wrote the letter to the on any questions that Duncan asked answer day that the law firm filed the on the same prior ground that her consultation providing a After factual motion to sever. trafficking regarding the cocaine Colton ques- background, Duncan asked two related attorney-client re- an charge had established representa- the law firm’s tions about Mills, however, firm. lationship with the law First, essentially Duncan tion of Trent.19 disclosed, lawyer, already to Trent’s
had the law firm would have to conceded that Roth, any information presence in Duncan’s representing Freund withdraw conveyed during Colton she jointly: Freund and Trent court tried Nevertheless, Mills remained consultation. [Tjhere may appearance impropriety an of silent. professional under rules of con- [Florida’s less than a The second conflict issue arose being against a client. up duct] in former 13, 1985, May law firm later. month On joint trial, Specifically, if in a Mr. Trent Freund, behalf of a motion to sever on filed behalf, ... testify on his own his elects the State asking the district court order j attorneys[ clearly put be former would Attorney’s prosecute Freund and Office to him_ [Ijt position cross-examining grounds, separate As Trent in trials.18 may eyes appear- of some raise the law firm averred that impropriety. ance of [tjhere DR. that because exists a concern that severance But because he believed was attorneys represented FREUND’s “likely,” Duncan asked past and on unrelated MR. TRENT in the case, prob- ... there are ethical whether that there matters to the instant Dr. arguing lems in in defense of if in Specifically, potential be a conflict. alleged homicide he trial, the time of joint testify in MR. was to TRENT[ ] insane, obviously insanity behalf, and this was attorneys his former own Trent, accordingly known Mr. Mr. cross-examining position in a be manipulated Dr. commit Freund to granted him.... severance should be [A] he, stated, Simply the murder for Trent. ... avoid even the remotest scintilla of ethically wrong anything there with ar- appearance impropriety. This is not guing separate in a former say appearance impropriety that an [Trentj responsible for a client homicide exists. [Freundj. opposed to the new client as The law firm concluded the motion with a questions requesting that it an informal As to Mills’s refusal answer statement addressing possible posed firm opinion written con- the law behalf actually prosecution if the intended to use the 18. This motion was the second such severance Judge motion that the law firm filed on Freund's be- Because Mounts did statement at trial. February motion, motion dated half. its initial grant we a severance based on this sought the law firm a severance because of repudiated any prosecution in- assume that the that Trent made to the an out-of-court statement tention to use it. on television that media. announced argued saw Freund kill Walker. The law letter, proceeded Duncan under the 19. In his impli- that the admission of Trent’s out-of-court assumption firm's that the law joint in a where Trent did cation trial successive, opposed Trent and Freund was testify not right would violate Freund’s constitutional Further, premised Duncan simultaneous. to confront his accuser. See Bruton "[cjlearly, prior representations of Mr. Trent States, 123, 135-36, 88 S.Ct. United 391 U.S. way homi- are in no connected instant (1968). *10 hearing, 20 L.Ed.2d After a cide.” Judge grant Mounts ruled that would the he He any- charge.” unrelated criminal went on the inquired [is] Duncan whether “there the murder on to state that because occurred thing the one initial consultation virtue consultation, prior law firm’s Mills, my after the the preclude law with that would Ms. prohibit her relationship with would not it examining and' Ms. questioning firm from her questioning Mills about “observa- the homi- concerning knowledge Mills her concerning alleged the opinions tions cide[.]” Mills submitted to the law firm’s homicide.” opinion advisory staff Duncan received 24,1985. deposition on June (the “Bar May from the Bar on opinion”). Regarding the firm’s law Hearing 4. Severance Trent, Bar although the Freund’s motion to sever was still While to either opinion not offer a direct answer did 20, 1985, pending, August filed on Trent his advanced, outline question Duncan it did that own motion to sever on two different some considerations: relevant lawyer, grounds. Through discovery, Trent’s attorney matter which the [W]here [for the Roth, learned that Freund had confessed to represented the is so unre- client] former psychiatrist although his that lated, time, that either substance or as to Walker, him do stabbed Trent made it. attorney acquired infor- could have Thus, ground motion the first of Trent’s the former client which [from] mation testify, the that if Freund chose not to admis- detriment, attor- to his could be used joint trial of out-of-court sion in a ney may ethically representa- undertake inculpated Trent would vio- confession former client. If such tion adverse to his rights Trent’s under the Sixth Amend- late during acquired related information Bruton v. ment’s Confrontation Clause. representation, [the the course of former States, 123, 135-36, United 391 U.S. 88 S.Ct. pro- professional conduct] rules of would (1968). Judge L.Ed.2d 476 Mounts if a proposed hibit even to avoid a Bruton problem, ruled present severance of the former simply exclude this if statement granted. Therefore clients’ cases jointly. Freund and Trent were tried responsibility of the former client argued where present case could be ground in- Trent’s second for severance no information was obtained detrimental relationship the law firm’s with him. volved previous represen- distant unrelated acquired alleged that the firm had Trent law tation. it could information that use confidential joint Despite his own against him at a trial. question As to whether the firm could sever, pending initially motion homicide, opinion Bar Mills about the request- joined opposing Trent’s the State suggested long ques- that it could as as its severance.20 ed tioning reveal or confi- did not secrets firm it dences the law and Mills. As between hearing Judge Mounts conducted Trent, opinion the Bar cautioned did September severance motion on firm that Mills’s consultation with the law opened hearing to the The court was either close time or related to atten- public, significant media drew homicide, ethically the law could called to first witness that Roth tion. The question concerning homicide. Mills initially detailed was Trent. Trent the stand 3, 1985, attorney-client relationship that had de- relying opin- Bar On on the June himself. ion, the law firm and veloped order between Duncan moved court to Mills during the course deposition. Dun- Trent testified to submit to the law personal he had confided his Judge representation, Mounts the law firm can assured Foley business affairs to both the confidences and secrets secrets and would “maintain the law firm about told been disclosed Ms. Mills and Colton. activi- multiple criminal participation during Mr. Colton their initial consultation fact, granting the severance" days hearing, grounds exist for a few before try Freund and Foley, court should both Attorney's and that the State Office on behalf legal together. stipulated writing "no *11 testimony, drugs prostitution. and his Roth involving ties Even After Trent concluded “categori- stand. called Colton to the Colton Trent retained Roth after had to handle his totally” cally^]” “unequivocally and denied drug prosecutions, and assault he called Col- Trent every and accusation” that had “each stabbing. from after the ton Illinois Trent being forced off levied.21 To avoid telephone time explained at the of the case, Foley cross-examine Colton or did not call, he still Colton to be his attor- considered testify. Although both Duncan and as- ney. attorney declined to examine sistant state testimony then Trent’s from moved his Colton, him, question eliciting did court relationship with professional the law upstanding member of that Colton was personal relationship. lurid a more and He Bar, enjoyed reputation the Florida solid Foley and to be professionalism, had considered Colton close and for fairness and had Beyond involving lawyers. in to his served on several bar committees friends addition legal judicial ranging from discussing activities, issues ethics criminal Trent his would appointments. lawyers recount to the details his both exploits. Foley Trent even sexual showed During arguments that followed con- devices,” and Colton a number “sexual testimony, clusion Duncan announced that handcuffs, including whips, and chains his joining request Freund for a was Trent’s apartment. Trent Palm Beach Hotel changing severance. reason Duncan’s for Foley’s in inflammatory allega- contended that he used cocaine mind was not Trent’s Rather, including against in their law law firm. Duncan presence, and Colton’s tions feared that the court’s exclusion offices. psychiatrist out-of-court to his confession Trent, Foley According Colton did joint completely gut trial law just of devi- more than listen to Trent’s tales case, is, theory of the Trent ancy. allegations Trent several serious made controlled him to ordered kill First, against lawyers. claimed both he only problem joint Walker. Roth’s with a friends, some- have delivered cocaine their contrast, law firm’s cross- suggested times at the firm. He further examination of its former client “if and when lawyers pros- provided had both Judge Ultimately, Trent takes the stand.” occasions, payment many titutes on often granted Mounts the severance. Indeed, allegedly legal Trent services. many Trial provided Foley [prostitutes] with “so daily years ... [was] over almost The court Trent at- tried first. Duncan alleged attor- occurrence.” He that the two testimony tended trial and observed the many neys participated had attended Mills, Daniell, prin- Angelilli the three involving of his “sex cocaine and parties” cipal fact for the witnesses Neither State. occasion, prostitutes. example, one For nor Trent testified. The trial result- Foley allegedly Trent and invited several jury, hung ed in a and the court declared a prostitutes the close of to the offices after bargain, plea In a Attor- mistrial. State accidentally tripped business. of them One ney’s degree Office reduced the first murder burglar police-monitored When alarm. charge exchange for Trent’s pleading arrived, police that he guilty second-degree recounted murder. The court sentence, Foley 17-year to a answer the door because sentenced Trent prison authorities have since released him.22 naked. deny every following exchange I 21. The Roth and A. each accusation Mr. between deny has about me place: Colton took stated and I them uncategorically, totally. unequivocably and Q. You all have heard Categorically. THE COURT: Mr. Trent? A. Yes. transcripts to, not contain 22. The record does you Q. In discuss, what and I think we reference trial. Nor does record reveal legal Trent's can To some other than issues? made, deny direct involvement on Trent’s you further those accusations do prosecution. Freund's accusations? *12 stabbing Angelilli that Freund made testified Trial 6. Freund’s body. in the of Walker’s motions direction guilty second-de- pleaded After Trent couch, body behind Because Walker’s murder, Attorney’s of- gree the State Office did not see the Angelilli that she conceded Freund. deal to The fered the same body. actually Daniell knife strike Walker’s in- that the defense of advised Freund up pick that he saw Freund Trent’s testified sanity percent or less of was successful All three approach knife and Walker. wit- Rejecting the offer on behalf of the time. alone in testified Freund was nesses that Freund, state Foley stated to assistant time, room with for a short and main Walker attorney holding for the defense was out that afterward he came into bedroom that manslaughter guilty by or not a verdict of describing blood on his shirt. After with Thus, brought the State insanity. reason of cleaning up moving their roles and Walk- 23, 1985, and trial on October body, concluded their er’s witnesses each as his trial Foley Duncan served law- and through recounting how testimony direct and yers. why they police. went to the i. State’s Case-in-Chief many of the brought Duncan out inconsis- introduced most of the The State first testimony on tencies of each witness’s cross- testimony through the of physical evidence example, he elicited examination. For police who the in- various officers conducted they Angelilli origi- and that when both Mills presented vestigation. prosecution nally police, omitted alto- went autopsy through the the results of Walker’s gether any of Daniell. Mills and mention conducting testimony pathologist. He of the Angelilli explained they were afraid although body fluids Walker’s confirmed they thought he inculpate him was a because cocaine; alcohol and high revealed levels Only hit man who kill them. after stabbing diazepam, caused derivative and police Daniell went did Mills An- Walker’s death. gelilli acknowledge presence at mur- Mills, Through Angelilli der scene. Daniell, presented the details the State Mills, cross-examining Duncan While only minor inconsisten- murder. With how questions a series about she asked cies, essentially witnesses recount- three know about her came to Trent and leading up following to and ed the events Duncan trafficking had arrest for cocaine. I, stabbing as described section Walker’s background of that her recount B, basic They all opinion. this testified charge Trent’s assistance from pending present apart- at that Freund was Trent’s shortly until her one and that, after her arrest night ment the of the murder and meeting stopped Duncan direction, injected Colton. with Walker first sulfate, her consultation asking Mills about magnesium then with mixtures short with she, also admitted diazepam, finally air. with Colton.23 Mills of vodka and police Q. officers co- Specifically, questioned You tried to sell some Duncan Mills as fol- caine? lows: person. A. I like the middle you jury Q. to this heard of You testified you trying Okay. Q. were much cocaine How you you John Trent learned about while to sell? County jail? were Palm Beach requested, [the what he A. Four kilos. That’s A. Yes. police officer] Rosemary Q. Through a Lail? requested one kilo. he received A. cocaine, Yes. Q. Ms. Mills? How a kilo of much is Rosemary you Q. Okay. And what Lail told pounds. A. Two was, “Listen, looking you’re big at some time sorry, price? Q. I'm guy you and a want to see in town fine thirty-seven price? thousand I A. The About is John Trent”? price think the was. for, selling thirty- A. Yes. you Q. That’s what seven thousand? arrested, you you Q. I think And had been A. Yes. jury you trafficking you Q. understood jury, And told the cocaine? told you for carried been arrested that what had A. Yes. And, topless she worked dancer. except used co- everyone like else stabbing. Daniell admitted on cross-examination night of caine on that he he was an attested ex-felon of each the three On cross-examination go prison except on a “would never back to witnesses, personal elicited facts Duncan slab.” *13 impeach credibility. For their effort to instance, questioned Mills about “Port 0 he Insanity ii. Freund’s Defense Men,” for service she ran. Call escort case, cross-examining prosecution rested Dun- Angelilli, After Similarly, when insanity just Foley presented prior to can and Freund’s Duncan elicited year mandatory help A. He needed also. with a fifteen minimum sen- it you help? Q. What do he needed mean tence? A. He was an He was an infor- A. informant. Yes. something you guilty Q. were for the law so he needed too. that if mant You understood that, you day would would for He needed some assistance also. It convicted of day do Rosemary myself.- help Lail and years? him fifteen A. Yes. Okay. Q. Q. You talked about what it was You were also aware that carried with assistance, quarter though, whereby you years a it in to the fifteen of substantial addition somebody police would work to dollar fine? with set million up? A. Yes. it, yes. your Q. with A. We talked about So as a result of conversation Well, Lail, you looking you Q. Rosemary about the of were forward to talked mechanics going get meeting guy you who was out it? this year prison quarter of a sentence A. Yes. fifteen somebody get Q. up, would of a dollar fine? You set them million going get drug I in a A. sure he was me out. involved deal? wasn't you certainly going up? Q. But were A. No. He was to set someone I understand that. He, being going Q. it out? who? to check out, yes. going A. I A. John Trent. was check you got jail, Q. out In fact the first time of it, Mills, you, Q. John a cab didn't Trent sent for he? But the mechanics Ms. wrong, A. me if was Yes. correct using you I'm that John bring you somebody Q. up paid he for cab to would else in a And set get drug they Palm Hotel? deal and would arrested and Beach you help A. then would and the Yes. Prosecutor Mills, you get Q. jury, thing your problem? the first Tell the Ms. State and out of you you saying. did arrived what said and when at John A. That’s he was Now, got Okay. apartment day you jail you Q. out John Trent told that he what, paid Depart- the cab that he for. had the West Palm Beach Police apartment. Rosemary pocket? A. I went into Lail ment in his back there, was John there and Trent was the first A. Yes. cocaine, thing lay Q. he De- he did out some That had the Palm Beach Police Q. partment pocket? You did it? in his back A. He He Yes. A. Yes. had them all. said he had thing Q. good rapport off The first the bat? with them. Okay. up Q. A. Q. And set Yes. John Trent himself you jail you're being get you big The moment out ... man? Yes, doing cocaine? he did. A. things? Q. A. could Yes. He control me, Q. begin yes. John And did Trent then to talk to A. That's how it came off you day you jail Q. about a term use down here first came out and went we The it, courthouse, there, worry you, told Ms. "substantial assistance”? he "Don't about Mills, things you”? I going A. don’t know he mentioned that term or I’m to handle for say help not but he did he me. Yes. could A. it, you, Q. Okay. may legal great Q. He have used That was a relief to wasn't assistance,” terminology, "substantial but he ma’am? "Listen, explained you, Eleanor him I told him or Ms. A. No. Because I listened but Mills,” you, only way "the whatever he called that I didn't believe it until I seen it. you're going get you Q. under But the least relieved or out from this fifteen weren’t bit year mandatory encouraged going get you minimum and a out of sentence quarter year mandatory quar- of a million is to with fifteen sentence and dollar fine work me”? ter of a million dollar fine what he said said, going yes. you? A. to do That’s what he comfortable, yes. Q. Okay. I felt more A. may treated of mental condi- Through be “as evidence defense. several witnesses, only and they demonstrated that Freund tion not as evidence factual good oncologist reputation had a as an before truth” that contain. did They attempt. developed testify. suicide surrounding attempt, facts the suicide focus- personality
ing changes on in Freund’s iii. Rebuttal State’s damage Colleagues had caused. brain prosecution expert its own wit- The called that he seemed to be a Freund testified rebuttal, psychiatrist who court ness memory prob- person different with severe appointed compe- to determine presented lems. defense also the testi- tency psychiatrist opined to stand trial. This mony explained experts who several of his feigning that. Freund was most mental symptoms suscep- *14 damage, including of brain although problems. He claimed that the tibility of suggestion indepen- and a lack stabbing may result of have been the an Many experts of these had judgment. dent definitely impulse,” “irresistible Freund shortly after evaluated Freund his suicide killing that he was Walker knew knew attempt to determine whether not he was doing wrong.24 what he that was was The practice fit to to the of medicine. return reports witness also on the that commented of During its cross-examination Freund’s Freund psychiatrists who had examined through testimony the the witnesses and of competency determine his to reten to the rebuttal, prosecu- the witnesses it called on practice prepared. He medical inter- attempted tion to demonstrate that Freund indicating reports those as preted that doing knew when he what he was stabbed improving Freund’s and that condition was wrong. Walker and knew that was When it might Freund to return have been able psychiatrists cross-examining one of the who practice suggested He the medicine. called, Foley the elicited that Freund State psychiatrists on the who testified Freund’s psychiatrist had told that he the remembered exaggerated support behalf his condition night Spe- the of the events of the murder. insanity defense. cifically, psychiatrist jury heard the con- firm had admitted to that Freund remember- called The last that the State on witness ing following: Trent called him to come rebuttal, and the last witness of entire he over kill When arrived at and Walker. Stob, a friend of was James Freund. apartment, lying Walker was on the killing Stob testified that Freund denied injected floor in handcuffs. He Walker with jail. him At when visited on no Walker Stob diazepam knowing that it would not kill testify. Trent to time did State call Walker. He stabbed Walker several times opener. with a He did not letter know Walk- Closing Arguments iv. identity er’s he stabbed him. when He first back, stabbed but then turned Walker closing arguments focused The because, him him in the heart over to stab stabbing. insanity Freund’s at the time of the doctor, way really he knew that was “to attorney argued assistant state person kill a that is in handcuffs.” doing exactly knew he was Freund what falsely psychia- he to convince Foley objected tried Duncan nor Neither he Duncan focused trists that was insane. questioning. Judge line of in- Mounts did support- occasion, damage and the jury, on than one on Freund’s brain struct the more arguing psychiatrists ing psychiatrists, statements alleged insanity provide at the time an defendant 24. Some an defense for crime states infirmity, disease or crimes was reason of mental committed as a result of irresistible 4.01(1) (1995) impulse. § the nature and Code defect unable to understand See Model Penal consequences, or if (providing insanity quality of his he defense where “as act or a result it, incapable of distin- mental or defect did understand [the defendant] disease lacks right guishing from that which is capacity ... that which is substantial conform his conduct law”). law, wrong. requirements Florida (Fla. however, State, 245 n. permits insanity only Wheeler v. 344 So.2d the defense of 1977). where v. Verdict and Sentence did not know what he was Freund either or, doing did he stabbed Walker when receiving instructions After their doing, did not know that know what he was Mounts, jury Judge deliberated for Duncan asserted that vic- wrong. two days. No- total three hours over two On case, tims Walker Freund. existed 1, 1985, jury returned a verdict vember argued knew that Freund’s He that Trent guilty degree. of murder in the first At a susceptible him to influence condition left penalty jury subsequent phase, recom- accordingly manipulated and and that Trent through life of ten mended a sentence a vote robot, making like him Freund controlled Judge accepted recom- to two.25 Mounts kill Walker. and sentenced to life in mendation argument At Duncan point, one turned prison possibility parole without the contending Foley. After that reason- over years, minimum twenty-five sentence sanity, to Freund’s able doubt existed as could that Freund receive. Foley jury argued to ordered Appeal F. Direct it, something. to do did and because of He represented direct The law Freund on situation, Ralph Walker is stressful *15 appeal. grounds appeal, On unrelated this I really dead. don’t know who did it. We Appeal Fourth and both the District Court of always whether Trent did it and wondered Supreme Court of Florida affirmed guy, My it. poor told this “You did col- State, Freund’s conviction. See Freund v. you leagues telling you are it.” here did Dist.1987) (Fla.App. (per 4 So.2d girls lying they The same when (Fla.1988). curiam), aff'd, 520 So.2d they police told the didn’t even tell them in the about Daniell sworn statement. get years going to fifteen manda-
woman is II. COLLATERAL REVIEW tory parole for her without lifted if she PROCEEDINGS lies, cooperates, but she she is trouble A. State Court got and she lied about Daniell and Daniell figured he he get word and better failed, appeal After his direct Freund ob- on also so he the train runs down to the lawyers same who tained new counsel—the was, police Tuesday, I think it station after represent Freund collat- before us—to attack murder, gives and his statement and erally his conviction in state and federal okay. say 1990, 29, court. March filed a On Freund Remember, he lied about that so we sentence, judgment motion to vacate the happened don’t know what there. We pursuant to Florida Rule of Criminal Proce- guess happened. can’t what We can’t (the motion”), dure 3.850 “3.850 in the state guess man into the electric chair that him. circuit court tried and sentenced guess years we him can’t into 25 argued law conflicts of Freund that the firm’s penitentiary parole. without interest denied Freund his constitutional right to the effective assistance of trial coun- Foley insanity then returned to the defense. conflicts, sel. As sources of the Freund In the closing argument, State’s final in addi- pointed relationship with law firm’s tion to refuting insanity defense, it ad- Mills. “Now, Trent and The court conducted Foley’s dressed statements: Mr. Fo- (the ley 25, you evidentiary April tells hearing we are not even sure stabbed hearing”).26 Walker. ridiculous.” That’s “3.850 25. The resolving record before us does not his 3.850 motion because include tran- Mounts scripts “firm, penalty phase. judge’s fixed and select admitted opinions credibility feelings of” about Judge preside Mounts did not over rele- Trent. vant proceedings. state collateral review ' successfully disqualify Judge moved to just prior August Trent on Investigator
1. Trent’s Private arrest in Illinois. case-in-chief, In Ms Freund’s counsel first two to the stand. The called witnesses 2. Duncan Dick. Dick was an auxil- was Thomas witness Duncan the second witness that Riviera Beach Police iary patrolman for the hearing. the 3.850 called at Freund’s counsel Dick Department a friend Trent. regard to the law With investigate him to Trent asked testified that prior May Duncan of Trent testified Vana, alleged background victim although handled most of that Colton charge. assault aggravated Trent’s 1983 work, appear he did with Colton Trent’s conducting any investiga- Dick denied ever Judge hearing before Mounts. forfeiture tion, obtaining police but admitted Duncan the law simulta- denied report meeting -with Trent and Colton neously represented and Freund. case. separately discuss the Neither asked his reaction Trent’s When about to do Trent nor asked Dick inves- Colton hearing, allegations at the severance Duncan diazepam tigative respect to work with appalled admitted he was possession charge. generally angry. firm was following Moving events the stab- testimony, however, The bulk Duncan’s bing, Dick learned that testified dealt with law firm’s investiga- murder fugitive Trent was a Foley Freund. Duncan and served as Dan- tion and that Freund had surrendered. preparation principal lawyers. Freund’s shortly Dick thereafter. iell went to see defense, Duncan for . observed [at Darnell Dick that “he was told Trent’s trial. that Trent’s He stated happened hap- apartment] when whatever he did not commit the defense *16 pened.” Daniell to turn him- Dick convinced this murder. did not consider de- Duncan Department. in to Beach Police self the Palm with completely to be consistent the fense in Illi- point, At some Trent was still while Trent, theory of the case that nois, permitted police Dick to record calls knowing organic damage, brain Freund’s police made to Dick’s residence. record- manipulated Freund into orchestrated and and ed several conversations between Dick stabbing Walker. days. Trent over the next few view, that, insanity Duncan his testified that These recorded conversations Freund only plausible and defense was the viable hearing played at the 3.850 confirmed that Duncan, According to to available Freund. following the Trent had contacted Colton on Freund’s behalf experts who testified stabbing. Dick that Trent also told he would and well known in “some of the best arrange pay Dick to to do some Colton Additionally, battery of psy- their field.” suggested investigatory work. Trent that Freund’s tests after sui- chiatric conducted possessed power attorney Trent’s Colton provided proof that attempt documented cide over some his assets. damage existed well before organic his brain Finally, pointed Duncan out Walker’s death. concluded, tapes After Dick testified committing the Freund to that confessed following that he had met with Colton meeting stabbing Foley at their first and to meeting, calls from At that Trent. Colton five four or months made similar confessions enjoyed power to Dick that he denied and psychiatrist Duncan.27 later to both Ms attorney any of Trent’s Dick over assets. physical Duncan that State’s although testified he assumed conceded that without knife, (e.g., apartment, hand- represented in late evidence doubt Colton Trent bat, cuffs, trunk and gun, steamer July August and never him baseball Colton told Trent, inculpated not body) of the represented spoke that he Trent. Dick location last Duncan, jail. Duncan stated that watch at the According never suicide during Freund recanted time, say simply would lawyers psychiatrist. Freund his to his confession happened period following what During he could not remember to five month the four night Foley, death. initial Freund Walker's confession to was on sought the coro- asserted that Trent no further further conceded that and Freund. He any legal advice the law firm about magnesium not sulfate ner did discover (one injected after drugs that into matter that date. Walker) body autopsy, and Walker’s corroborated Dick’s account of Colton also bloody never found Freund’s police that the fol- Dick’s and contact with Colton Trent’s bag brought that he shirt or the doctor’s lowing stabbing. Colton testified that he apartment. whether the Trent’s When asked lawyer. never told Dick that he was Trent’s Mills, Angelilli three fact State’s witnesses — Rather, him, according “sug- Colton credibility Daniell —lacked because gest[ed] strenuously” get that Dick not in- Trent, drug use fear of admitted their with and that if Trent called volved rigorous that even under Duncan testified again, try him Dick Dick should to talk into they trial Trent’s not examination at surrendering. further testified Colton they claim saw.” This “back off what only he told Trent that “his alternative was testimony that she Angelilli’s included saw in, repre- to turn himself didn’t [Colton] stabbing making with motions him did have an attor- [Colton] sent direction —testimo-
Trent’s knife Walker’s ney-client relationship with him.” Colton directly implicated ny that Freund. denied that he discussed the facts of the lawyer’s disagreed most, according
Duncan Freund’s At murder with Trent. suggestion Colton, not seek something that the law did have said it,” for the to Trent. He shift blame murder of “I the effect didn’t do to which Colton although plea argued “you’d yourself of insani- replied, turn in.” better Col- ty necessarily implied that Freund killed flatly allegations ton also denied the Walker, taking premised hearing. on Trent’s Trent had at the raised severance advantage mental condi- of Freund’s known relationship When asked about be- him a tion that “robot” Trent’s rendered representation tween law firm’s of Trent pointed to his unlawful commands. Duncan Freund, engaged the State Colton Mills, Angelilli cross-examinations of following dialogue: Daniell, sought to facts about where he elicit Q Okay. of John Was ability control Trent, your prior of him but also others. any way facts connected with the Finally, Foley’s when asked statement *17 the homicide? might during argument closing A No. have hurt committed the murder Freund’s Q any Did those the facts of cases insanity defense, Duncan admitted he bearing allegations what on the of Foley was shocked when made the statement July place taken at the time of on 24th help” that it “sure didn’t Freund’s case. this murder? Foley Duncan that he asked testified later you IA don’t what mean. know why Foley he the statement. an- made Q I there mean was connection “appease” it to swered he did brought in the court that somehow mother. being the murder was related to him charged aggravated with the assault in 3. Colton charged being 1983 or to him related presented After Freund Dick’s and Dun- guns with in 1983? testimony, can’s the State called Colton to A No ma’am. the stand its first dis- witness. Colton Mills, regard prior legal representa- cussed the firm’s Colton admitted that law With Trent, focusing diazepam tion of he had her about the cocaine “consulted” Colton, possession aggravated charges. trafficking charge. According to he assault pro- possibility Colton Dick’s of that she would corroborated account Trent’s discussed requested investigation alleged substantial assistance the Palm Beach assault vide County He emphasized victim. Colton that Trent sub- Sheriffs Office. insisted May meeting brief and that after stituted Roth for the law firm in with Mills was represented that he during the time fee, again her never saw her a he quoted Foley’s prior Additionally, Mr. [Freund]. capacity. official ... Trent matters representation a conclusion testimony drew to Colton’s this case. unrelated to exam- question on direct last the State’s with Appeal Fourth District Court Florida’s lawyer elected ination. Freund’s judgment without court’s the circuit affirmed Colton. cross-examine of Florida opinion, Supreme and the Court jurisdiction. appellate to exercise declined Attorney State 4.Assistant trial also from Freund’s prosecutor The District Court B. Federal hearing as 3.850 briefly testified at the 16, 1993, filed the instant April Freund On prose- The final witness. second and State’s corpus, pursuant writ of habeas petition for he received letter that recalled the cutor § States United to 28 U.S.C. Fo- wherein Foley on October District of for the Court Southern District it had law firm believed that the ley indicated motion, with his 3.850 Consistent Florida.28 and ... a insanity defense unique, valid “a alleged that the law firm’s conflicts Freund manslaughter jury ver- getting chance the effective assis- Freund of interest denied opinion, the Also, prosecutor’s dict.” time, For the first of trial counsel. tance Freund at trial. vigorously defended however, alleged about Trent’s facts Freund diazepam possession assault aggravated 5.Expert Witness charges. the rebuttal testi- hearing ended with The judge the record magistrate reviewed A defense law. expert in criminal mony of an recommendation. report and issued representation the law firm’s opined that He (1) stated, part, that: “the pertinent He stan- the constitutional Freund fell below finding supports the court’s [state] record because representation effective dard representation, of Trent firm’s the law the law interest with conflicts of presented prior [its] ended of Trent prior representations (2) [Freund]”; no evi- “presented of Tar- cross-examination Mills. State’s firm ever establishing that the law dence not a board that Tarkoff was revealed koff simultaneously represented [Freund] both lawyer, had never dis- certified criminal (3) Mills”; “failed to show ... scope and na- the law firm the cussed by failing to demon- ‘inconsistent interests’ Trent, and representation of of its ture representation of' prior' that the firm’s strate Trent. talked to had never substantially related to [Mills] Trent or [Freund] the firm’s Order 6.Court’s in- confidential relevant firm learned of order, the court denied a written represen- alleged prior from these formation stated, court motion. The Freund’s 3.850 (4) adoption of *18 tations”; the law and part: pertinent actual an did not evince insanity defense the from Trent’s stemming interest conflict of pre- the of evidence From a consideration at the sever- the law firm allegations against that no conflict finds sented Court defen- an alternative hearing because ance Foley ... any time. Mr. existed at the fatal ... inflicted “Trent theory that represented sive having of [Freund] accused in view of realistic “not wounds” was The finds same time. Court at the [Trent] eyewit- of uncontradicted that at unfounded and allegation to be that 1, 1993, the dis- November On ... Trent nesses.”29 Foley represent did Mr. no time rejected judge Freund's magistrate prior 29. The petition 28. Because Freund filed prior representation of law firm’s and Effective that the date of the Antiterrorism claim effective 1996, violation Penalty concerning pre-1988 amend- traffic Act of the recent Death Daniell Chapter States Code’s 153 of United ments to of interest. actual conflict created another v. apply case. See Lindh 28 do not to this appeal. Title Murphy, argument on Freund abandons 2059, 2068, 320, 138 U.S. 117 S.Ct. 521 (1997). L.Ed.2d 481 858 668, 687-88, objections, 2052, Freund’s U.S. 104 80 L.Ed.2d overruled S.Ct.
trict court (1984). report 674 and recommendation adopted petition. denied A. Rules of Law III. ISSUE of assistance The crux Freund’s ineffective encompassing issue that we discuss lawyers, trial the law firm of claim is that his court erred in conclud- the district
whether
P.A.,
Duncan,
Foley,
un
Colton
labored
denied
ing
Freund was not
effective
that
of
The first
that
der conflicts
interest.
issue
of counsel because
assistance
brought this case en
concerns the rules
banc
(1)
arising
from:
firm’s conflicts
interests
involving
apply
of law that
conflict cases
(2)
Trent;
prior
prior representation of
its
simultaneous,
successive,
opposed
repr
as
to
(3)
Mills;
Trent’s sev-
representation
Sullivan,
Cuyler
esentations.30
v.
a case
hearing testimony
partners
that two
erance
involving
representations,
simultaneous
firm,
Foley, engaged in
Colton and
of the law
to
Supreme
held that
order
“[i]n
Court
dem
embarrassing
illegal
conduct.
onstrate a violation
his Sixth Amendment
IV. DISCUSSION
rights,
an
actual
[the
conflict of interest
petitioner]
must establish that
[2]
adversely
[1]
lawyer’s performance.”
446
Amendment
the United
affected his
U.S.
The Sixth
335,
1708,
Constitution,
350,
incorporated through
64
S.Ct.
L.Ed.2d 333
States
(1980). Although
Process
both Freund and the
Fourteenth Amendment’s Due
State
Clause,
agree
prong
the “actual
guarantees
persons
accused of
conflict”
of the
enjoy
right
Cuyler
applies
represen
...
“shall
test
a successive
state crimes
case, they dispute
tation
Assistance of Counsel for
what means are
[their]
have the
VI;
petitioner
prove
it.
U.S. Const. amend.
Gideon
available to
Freund
defense.”
335, 342-43,
Wainwright, 372
83 S.Ct.
contends that under this court’s decision in
U.S.
(1963).
White,
petitioner may
This
right,
L.Ed.2d
of Smith v.
establish an
issue,
course,
presently
through
includes the one
actual conflict
interest
one of
(1) pointing
trial
facts
assistance of
counsel. Un
three means:
and cir
the effective
lawyer’s
rep
forth
Strickland v.
cumstances that show
the familiar test set
der
Washington,
trial counsel
resentation of the former client related sub
establish
defense,
ineffectively
stantially
lawyer’s representation
assisted the
a habeas
(“substantial
(2)
relatedness”);
petitioner
under
corpus petitioner proceeding
28 U.S.C.
ad
(1)
lawyer’s rep
vancing
§
evidence that
former client
2254 must show that
actu
objective
ally
fell
standard
revealed confidential information to the
resentation
below
(2)
prejudiced
during
prior
representation
of reasonableness that
the de
(“confidential
(3)
is,
information”);
fense,
provided
probabil
relying
reasonable
performance,
proof of
interests.”
ity that but for such deficient
“other
inconsistent
(11th Cir.1987),
denied,
cert.
the verdict would have been different. 466
Cir.1992) ("[S]tate
petition,
findings of fact can be
In his 3:850 motion and 2254
court
record.”).
simultaneously
opinion
rep-
contended that the law firm
inferred from its
On
appeal,
challenge
both
and Trent. Both the state
Freund advances no serious
resented
court, however,
Thus,
implied findings.
express
and district
that —as
we
court
found
these
repre-
presume
finding
that the law
a matter of historical fact—the law firm’s
correct
firm's
May
sentation of
2,
terminated no later than
Trent terminated
when Trent substituted Roth for the law
commencement
law firm's
*19
2254(d) (1996) (state
aggravated
represent
§
28
to
in the
assault
of Freund. See U.S.C.
him
possession prosecutions.
findings
diazepam
of
fact made after evi-
Addi-
court
historical
correct);
hearing
tionally,
dispute
dentiary
presumed
are
in
that Freund
Mar-
record is not
422, 434,
Lonberger, 459
103
became the law
client soon after the stab-
shall v.
U.S.
S.Ct.
firm's
Moreover,
("Title
843,
(1983)
bing
July
28
implicit
late
in its
859
representation
181,
interests
in a
863,
133 tent
successive
98 L.Ed.2d
484 U.S.
108 S.Ct.
Smith,
Smith,
(1987).
at 1406.
State,
815 F.2d
The
citing
asserts
ease.
The
may
proof of incon-
only
are
to
situation
call for “other
the first two means
available
at 1406.
they must
sistent interests.” 815 F.2d
Over-
be em-
petitioner
(that
all,
is,
inquiry
fact-specif-
petitioner
the “actual
conjunctive
conflict”
ployed
ic,
petitioner’s
consistent with the
ultimate
prove
relatedness and
both substantial
must
information).
prove
“to
that his conviction was
argues
The State
burden
confidential
Smith,
F.2d at
showing
unconstitutional.”
815
1406.
forgo a
of confi-
that courts should
pretrial disqualifi-
dential information
Contrary
position,
to
State’s
we
preventing use of
proceedings
cation
where
compelling
no
reason to break with
find
privileged
remains
discussions
essential.
requiring
necessary
as a
stare decisis
proving
to
an “actual conflict” the
reaffirm that
condition
hold and
Smith
We
revelation of confidential information
proving
test for
actual
articulates this circuit’s
representa
prior
during
representation.
rule of
“actual
in the successive
conflict”
be)
(and
We,
in this
will continue to
circuit is
tion
F.2d at 1405-06.
context. 815
however,
[petitioner]
par
that “once the former client
disagree
with each
somewhat
Rather,
subject
pres
proves
in
that the
matters of
ty’s interpretation
we
of Smith.
prior representations
are ‘substan
terpret
following.
mean the
An
ent
Smith to
'
related,’
irrebutably
tially
pre
court will
of interest occurs when a
“actual conflict”
Smith,
lawyer
interests.”
sume that relevant confidential information
“inconsistent
has
during
period
prove
an was disclosed
the former
showing
we
“adverse
of substantial
(and
effect,”
{e.g.,
the rule
law in this circuit is
former client
Trent and
sume that the
be)
Colton)
Mills)
panel
lawyer {e.g.,
the same rule that the
to the
continues
divulged
employed:
relevant to the
all of
or her confidences
subject
representation.
The State
effect, a
prove
petition
habeas
To
adverse
position
prac-
to'
First,
fails
reconcile its
with these
satisfy
must
three elements.
he
er
proof
are equally
tical difficulties of
plausible
point to
must
“some
alternative
present
post-conviction
context.
might
strategy or tactic [that]
defense
Appellee’s En Banc Answer Brief at 8
pursued.”
v.
have been
United States
Fa
(“[T]he
(1st
829,
Cir.1985);
presumption
pur-
no useful
hey,
serves
769 F.2d
836
see
pose
Wainwright,
930,
context of
instant
case since
Porter
F.2d
[v.
805
client,
(11th
denied,
Cir.1986),
representation of the
i.e.
new
482
939 - 40
cert.
3195,
allegation
918,
already
107
occurred when
U.S.
that the alternative
or tactic was
prej
the facts.
reasonable under
Because
accept
Nor do we
the State’s view
Strickland,
presumed,
udice is
see
466 U.S.
Cuyler’s
prong
“adverse effect”
should
692,
2052,
petitioner
104
at
S.Ct.
“need
apply
representation
in a successive
case.
not show that the defense would necessari
points
Fifth
It
Circuit’s decision
ly
if
(5th
have been successful
alternative
Scott,
Cir.1995),
[the
v.
Beets
yer, defender, public an assistant had to B. Standard Review formerly represented cross-examine “a client brought principal The second issue that office”), public the same defender’s cert. denied, en this case banc concerns the standard of 488 U.S. 109 S.Ct. parties Specifically, review. we directed the (1988). Finally, L.Ed.2d 346 a resolution of following question: to brief the this contention is not essential this case because under lax Cuyler even the more Is a lower court’s determination that standard, find no effect we adverse in this in a matter is case, IV, C, explain “substantially particularly we section or is not related,” White, opinion. subsection 2 of the see Smith v. F.2d at [815 Litigation), compelling prove very ed.Container Antitrust client to former (5th Cir.1981) (“The confidential.”). keep presumption things avoids seeks to
861
(such
1405],
attorney
what an
actu
pur-
a later
for
habeas court
as
representation
client),
ally
to which a
did
standard
poses
evaluating
of
an ineffective-assis-
for
applied
deciding
question
a
based on a conflict of law is
mixed
tance-of-eounsel claim
(a)
(b)
2254(d)’s
fact;
law,
a
a
question
interest:
of
fact and
... merit section
of
of
(c)
law;
question
a mixed
of
in a
question
presumption
of
of correctness
federal habe-
(internal quotation
fact?
proceeding!.].”)
law and
marks
as
added).
omitted; emphasis
citation
In
and
case,
present-
In
both
courts have
lower
deed,
repeatedly
pe
we
instructed
ed us with relatedness determinations. The
showing
titioners
make a
of
“must
“prior
state court said that
the law
factual
prove
inconsistent interests” to
the existence
representation of
was in matters
Mr. Trent
Mers,
of an actual conflict. United States v.
representation
unrelated to”
Freund.
(11th Cir.)
1321,
(emphasis
701 F.2d
1328
Likewise, the district court decided that the
added),
denied,
991,
cert.
464 U.S.
104 S.Ct.
representation
law firm’s
of Freund
(1983);
482, 78
679
see also Burden
L.Ed.2d
“substantially
particularly
was not
and
relat-
(11th
Zant,
1298,
Cir.1994);
24
v.
F.3d
1305
firm’s prior
ed” to the law
554,
Singletary,
Porter v.
14 F.3d
560-61
aggravated
and diazep-
Trent on his
assault
(11th
denied,
Cir.),
1009,
513
115
charges,
cert.
U.S.
possession
am
but also
no
beared
532,
Smith,
(1994);
L.Ed.2d 435
alleged
S.Ct.
130
rep-
“correlation between the firm’s
Romero,
1404;
F.2d at
of ...
a
815
United States v.
resentation
Mills on
cocaine
(11th
981,
Cir.1986);
charge[.]”
780
986
Barham v.
(11th
States,
1529,
724 F.2d
United
1532
resolution of this issue will
Our
dic
Cir.),
denied,
1230,
cert.
467
104
U.S.
S.Ct.
to these determina
tate whether we defer
2687,
(1984);
862
and fact
contexts,
of
are “mixed determinations of law
proper characterization
a
the
presumption
fact or
is
entitled
a
correctness
of
law sometimes
of
question as one
2254(d) (1982).”).
110-11,
§
116
457
at
S.Ct.
slippery.” 516 U.S.
under 28 U.S.C.
omitted).
(footnote
Essentially, though,
short,
the
every
equally
we
reason to treat
find
precedents
limiting
as
its
summarized
Court
ultimate
of
related-
the
conclusion substantial
“basic, pri-
presumption
ness,
of correctness
the
potentially dispositive
of
ele-
one
the
in the sense
mary,
facts: facts
of
or historical
stemming
a
ments of conflict claim
from suc-
credibility
events and the
a recital of external
representations. The historical facts
cessive
ence. 2. Adverse Effect to Colton— information relevant confidential any alleged Even if conflicts no made little to showing that Freund conflict, interest rose to the level of an actual nature of to advance —the confidential effort flowing fail to find adverse effect we disclosed to a when she it ceased to exist from them.37 At time that party prior to trial. third Mills, his law firm’s Duncan cross-examined *26 i. to Blame to Failure Shift the Trent presented her no prior representation of hypothetical a conflict of interest. more than Freund that but for the contends court did not err Accordingly, district allegiance to Trent of its law firm’s because “failed to concluding that Freund establish him prior representation and extensive alleged the firm’s any between correlation public allegations and Trent’s of embarrass a prior of ... Mills on cocaine ing and illicit on the conduct Colton charge [its] ... and Foley, pursued would have blame- [Freund].” Trent, shifting opposed to defense that as Freund, actually to stabbed Walker death. Allegations
iii. Trent’s
closing argument
points
Foley’s
Freund
to
Lastly,
al
he “wondered
Trent did it” as
points
Trent’s,
Freund
where
whether
hearing of
the law firm realized the
legations
pretrial
at the
evidence
even
severance
against
insanity.
embarrassing
superiority of this defense over
illegal
conduct
responds
light
firm as a
of an The State
that in
undis
law
source
members of
view,
puted
of all three fact witnesses
of interest.
In Freund’s
actual conflict
death,
interest not
that Freund stabbed Walker to
it was in the law firm’s own best
pursued
theory
antagonize
for fear that he would
viable
points
allegations
argu
case
to it.
It further
out
repeat
again. Freund’s
available
defense,
ment, however,
insanity
Concerning
unique
cannot stand.
that Freund’s
is,
knowingly
advantage of
allegations
on the
that Trent
took
Trent’s
of illicit activities
damage
organic
manipu-
lawyers,
Freund concedes Freund’s
brain
part of the
even
allegations
already
Additionally,
Although we
no actu-
have
found that
the truth of Trent's
37.
existed,
compelled
we feel
to address
fact-finding necessary
al conflict
was irrelevant
prong
the adverse effect
because our cases have
Where,
here,
charge
of murder.
discussed,
in the context
actual
sometimes
conflict,
witness,
lawyer's
not a fact
out-of-court con-
(namely, blame-shifting) that are
issues
pertinent
duct is
the crime with which
never
appropriately analyzed in the context of
more
charged.
generally Fla. Stat.
the client is
See,
Romero,
e.g.,
at
adverse effect.
F.2d
90.401,
(1997).
§§
90.402
sulfate,
robot,
injected
magnesium
with
shifted the blame to
Walker first
him like
lated
refuting any suggestion
diazepam,
then with mixtures of vodka and
somewhat —
of interest motivat-
alleged
finally
Angelilli
conflicts
that the
with air.
testified that
strategy.
stabbing
ed the law
Freund make
motions
the di-
body testimony
rection of
that di-
Walker’s —
It is true that “a
agree with the State.
We
rectly implicated
Corroborating
Freund.
strategy
shifting
blame to one’s eodefend-
Angelilli’s testimony, Daniell stated that he
legitimate
and often effective de-
ant[]
pick up
ap-
Freund
saw
Trent’s knife and
Mers,
strategy!.]”
F.2d at 1330.
fense
And,
proach Walker.
all three witnesses tes-
case, however,
shifting of
In this
a wholesale
tified that Freund
alone in the main
plausible
not a
defen-
blame to Trent was
time,
a short
room
Walker for
realistically available to trial
“option
sive
he
into the
afterward
came
bedroom with
counsel!,]”
regardless of the law firm’s
said,
Carter,
shirt
blood
“It’s over.”
dealings with Trent.
721 F.2d at
(internal quotation marks omitted and
Mills,
Attempting
get
Angelilli
and Dan-
added);
emphasis
accord
change
implication
iell to
their
of Freund on
(alternative strategy must be “rea-
at 1580
proved fruit-
cross-examination would have
“possess!
under the facts” and
suffi-
]
sonable
Duncan
less.
had observed
witnesses’
alternative”).
cient substance
be
viable
during
testimonies
and tactical-
evidentiary
at
Duncan testified
3.850
ly
that their
determined
stories would sur-
hearing
to him
that Freund admitted
rigorous
In Dun-
vive
cross-examination.
Walker,
committing
stabbed
confessed
view,
professional
can’s
these witnesses
stabbing
Foley
meeting
at
at
their first
simply “not
off of their
back
testimo-
offices,
psy-
the law firm’s
and later told his
sure,
ny.”
points
To be
to no evi-
chiatrist
that he stabbed Walker because
dence that Trent —if the law firm had called
him to do it. Freund
not elicit
Trent told
did
him,
testify
him to
exculpated
—would
testimony from Duncan that either he or
though
pleaded guilty
he had
to second-
even
Foley
factual basis
to doubt
degree murder before Freund’s trial com-
Freund’s confessions.38
(De-
Carter, 721
menced. See
correctly points
out that all of the
“points
fendant
to no evidence that a code-
is,
physical
apart-
State’s
evidence—that
him.”).
exculpated
fendant could have
That
ment,
knife,
bloody
trunk that con-
steamer
*27
may
have been more motivated than
body, sledgehammer,
tained Walker’s
hand-
inconsequential.
kill
Freund to
Walker is
cuffs,
bat,
tape, guns,
duct
dented baseball
(blame
Oliver,
shifting
at 1525
See
782 F.2d
towels, dining
blood-soaked
room chair with
although
not
eodefend-
realistic because
it,
lodged a bullet
van with Trent’s and
victim,
ant had a
to kill the
no witness
motive
fingerprints, syringes,
Fullerton’s
bottles of
holding
him
the knife or could corrobo-
saw
diazepam, empty capsules magnesium
sul-
so).
opportunity
Simply put,
rate his
to do
fate,
liquor
belonged to
bottles —either
witness-including
no fact
Freund himself—
property
Physical
or
found on
of Trent.
innocence.
could corroborate Freund’s
evidence, however,
only
persuasive
is
as
Additionally,
light
we observe that
who authenticate
tell the
the witnesses
Foley, Duncan and
trial,
Freund’s confessions to
story
it. At
and from
behind
Freund’s
psychiatrist,
lawyers
firm’s
could
the law
police’s investigation,
the start of the
all
they
pursued
if
have been disbarred
principal
three of the
fact
State’s
witnesses—
Although
Mills,
complete blame-shifting defense.
Angelilli
against
and Daniell —testified
certainly
argue
be ethical to
reason-
They all
it would
Freund.
testified that Freund was
apartment
put the
to its burden
present
night
at Trent’s
the
able doubt —and
State
that,
direction,
proof
at
would not be ethical to affirma-
murder and
Trent’s
—it
point
(probably
38. We
that Freund
case
to show consciousness of
note
did not
to Stob’s
rebuttal
is,
testimony
during
jail
guilt), indicating just
opposite,
trial
that
killing
his visit to the
the
Freund denied
Walker as evidence that
tactically determined that Stob
the law firm
the law firm
should
doubted his confession.
credibility.
lacked
Indeed,
testify
the State called Stob to
in its
868
(1986).
2907,
prosecu-
finger at someone else.
tively
See
point
(4); (c)
4-3.S(a)(1),
get
penalty
it
Fla. Bar
tion
even
the death
Regulating
R.
could
(1)
(“A lawyer
knowingly:
not
Make a
proved
shall
that Trent acted either with the in-
...
to a
false
material
statement
tent that Walker die or with reckless disre-
fact
(4)
tribunal;
...
evidence that
law
See Enmund v. Flor-
gard for Walker’s life.
Offer
(e)
false[;]
lawyer
....
A
yer
ida,
782, 798,
be
3368,
knows to
73
458 U.S.
102 S.Ct.
lawyer
that the
may
(1982)
offer evidence
(intent
die);
refuse to
L.Ed.2d
victim
(quoted
false.”)
in The
reasonably
is
believes
Arizona,
137, 157-58, 107
Tison v.
481 U.S.
Regulating the Flori
Florida Bar Re Rules
(reckless
(1987)
1676, 95
S.Ct.
L.Ed.2d
(Fla.1986)).
977,
Bar,
1057-58
494 So.2d
da
life).
best,
disregard
for victim’s
At
course,
Amendment does not
“Of
the Sixth
implicit
that he commit-
admission
impossible
require that counsel do what
stabbing
mitigate against the
ted the
If there
no bona fide
unethical.
defense
penalty for Trent.
Fla.
death
Stat.
one
charge,
cannot create
counsel
921.141(6)(d).
§
Freund’s successful
That
the interests of his client
disserve
insanity
joint
trial
plea of
could have
charade.”
attempting a useless
United
relieved both he and Trent of criminal liabili-
Cronic,
19,
n.
States v.
466 U.S.
ty
entirely
reconciles
with a conclusion that
(1984); see
ii. Failure to
Examine Mills Finally, points Freund to Duncan’s V. CONCLUSION evidence that cross-examination of Mills as reasons, foregoing For the sum- adversely firm’s conflict of interest the law (1) mary, we hold that: the rules of law as Specifically, affected its defense of Freund. White, announced Smith v. 815 F.2d at lawyer argues that a conflict-free Freund 1404-06, govern claims of ineffective assis- could have used information that Trent re impeach premised tance of trial counsel on conflicts of ferred her to Colton to further Mills suggest of Trent. are stemming bias favor We represen- interest from successive (2) our recitation of the tations; not convinced. Under of whether a issue law firm’s IV, A, part law of adverse effect section prior representation of a witness or non- matters what conflict-free could testifying, separately-tried eodefendant done, but what he or she would have related, substantially particularly to its words, In other had the done. bur subsequent representation petitioner of the proving through preponderance den of question a mixed of law and fact that is not ques the evidence that Duncan would have 2254(d)’s subject presumption section referring Mills tioned about Trent’s her (3) correctness; and the law firm did not firm but professional the law for Colton’s provide trial ineffective assistance of counsel relationship with her. This he failed to do. prior representations Freund because engaged question in no at the line Mills, public of Trent and as well as hearing prove 3.850 this notion. allegations embarrassing activity and illicit anything, If Freund’s cross-examination of lawyers, give did not on the of two itsof hearing just Duncan at the 3.850 established ad- rise to actual conflicts of interest is, opposite, question that he did versely performance. affected the law firm’s assisting Mills about Trent’s her to reduce judgment Accordingly, affirm the we trafficking charge. the cocaine This cross- district court.39 entirely examination was consistent with the defense, theory
law firm’s as Duncan’s AFFIRMED. *29 judgment appeal:. 39. Freund raises three other on on issues without discussion. issues these (1) Judge whether Mounts’s failure conduct an But we do note See Eleventh Circuit Rule 36-1. inquiry issue, into the law firm’s conflicts of interest Freund concedes that that as to the third right violated Freund’s Sixth Amendment to ef- required was not to conduct "the district court counsel; (2) fective assistance of whether the law evidentiary hearing at bar[.]" an case pretrial investigation firm's failure to conduct a Reply Appellant's Letter at 14. En Banc guilt into the of Trent and the innocence of Also, holdings, light our we need not of right Freund violated Freund’s Sixth Amendment brought counsel; case en (3) reach the fourth issue that this to effective assistance of banc, any conflicts of whether Freund waived failing district court erred in dentiary hearing. to conduct an evi- part We interest on the of the firm. affirm the district court’s 870
TJOFLAT, garding proper application majori- of Judge, dissenting, in Circuit ANDERSON, DUBINA, ty’s determining for a BIRCH and test when such conflict which lawyer’s per- has an effect” on the Judges, join: “adverse Circuit light problems po- In of the formance. case, corpus a law firm In this habeas I, pitfalls part part II tential identified in in a murder a client represent undertook majority’s determination that reconsiders co-defendant the client’s prosecution which of facts this case do not meet either the of firm. long-standing client had been a prongs actual conflict or adverse effect of represented this co-defendant The firm Cuyler particular, part v. In Sullivan. II.B. variety in a of criminal and years for over ten explains Foley, the firm of Colton & matters, firm’s members had and the civil Duncan, P.A., represented which Dr. John him on interactions with a social extensive (the petitioner) initially faced professional of these a result As level. ethically-based two of interest conflicts interactions, privy to the firm became social representation of burdened its Freund. As information that could have great deal of II.C., part described in a third conflict arose quite damaging to its former client’s been began represent after the firm not murder but which the could defense III exacerbated this burden. Part then obligation of ethical of disclose because precedents interpreting Cuyl- returns to our confidentiality At to that client. the same er of these and determines none cases however, time, obli- the firm owed ethical lawyers, finding forecloses a that Freund’s and had a gations to its current client Sixth by these burdened as conflicts obligation provide Amendment this client interest, provided ineffective assistance obli- competent representation. These with Freund.1 profes- gations required that all of the firm’s in its current client’s best sional decisions be by conflicts inter- and untainted
interests
I.
interest,
tance of
tionally inappropriate
our
obligations.
ing quarterback,”
the writ
tion,
habeas
rent client.
that the firm made in
conflict of
resulting clash of the
degree
rent and former
each client
est.
The firm’s client in the murder
precedents addressing
who
Because the interests
corpus
murder,
because,
I
prejudiced
counsel
interest. The
respectfully
ultimately
necessarily
Because
now
claims
sitting
it believes
clients were
was convicted of
petitions
this result is constitu-
basis
dissent.
representing its cur-
tainted
firm’s
based
majority
flies in the face of
ineffective assis-
of the law firm’s
“Monday
obligations
on conflict of
for a
adverse,
firm’s
conflicting
decisions
prosecu-
writ
morn-
client
first-
deny
cur-
whom a former client
See,
with
yer’s
terpretation
primarily in two traditional contexts:
F.3d 1419
cessive
performance.”
335,
(1980);
interest
F.3d
recognized,
sel because his
that he was denied his
est must show “that
right to the
As both
348, 100
e.g.,
adverse
“simultaneous
representation”
accord Freund
[2]
McConico
(11th
effective assistance
a habeas
adversely
of this standard has
S.Ct.
interests,
lawyer
panel
Cuyler
(11th
Cir.1998).
1708, 1718,
representation” of
[1]
and the
Cir.1997), vacated,
had a conflict of inter
petitioner
appears
affected his-
v.
and a
Alabama,
v.
an actual conflict of
Sullivan,
Sixth
Butterworth,
Our circuit’s
64 L.Ed.2d
lawyer’s
client
majority
as a witness.
of trial
Amendment
who claims
developed
446
lawyer’s
against
clients
coun
“suc
U.S.
law
333
in
Cir.1990)
(11th
LA.,
(noting
that a con
part
problems
In
I
discuss
context).
majority’s
determining
flict of interest
arise in either
when a
test
types
two
The fact that
these
of conflicts
has
“actual conflict
interest.”
mean,
I.B.,
frequently
re-
arise most
does
howev
I offer some observations
Butterworth,
here.
Freund v.
majority
the is-
issue further
1. Because
does not address
vacated,
(11th Cir.1997),
sue whether
of the conflicts
interest
1582-83
*30
representation
(11th Cir.1998).
affected the law firm’s
of
871 proving an actual exclusive test er, in circuit’s contexts that these are two repre- in of interest the successive de conflict lawyer’s of interest can which a conflict In establish an context. order to of sentation effective assistance prive her client of the test, peti- a habeas See, under this Dugger, 834 actual conflict e.g., Zamora v. counsel. (11th Cir.1987) showing ‘inconsistent must make “a of 956, (noting that tioner F.2d 960-61 ” Smith, F.2d at 1405. As interests.’ 815 Cuyler has been developed “the standard it, majority proof makes of sees Smith argue applied to cases in which defendants of relatedness disclosure either substantial lawyers were more interested that their necessary prereq- information a acquittal”); confidential obtaining publicity than McLain, 1457, finding interests. to a of inconsistent uisite v. 823 F.2d United States however, both,3 Cir.1987) proves (11th petitioner if a Cuyler require Even (finding 1463 may to establish actual pros not be sufficient lawyer possible faced ments met where proof inter- Attorney’s conflict—“other of inconsistent by same United States ecution client); required. Ante at 859. ests” also be Zuck prosecuting office was (5th Alabama, 436, interpretation of is the Implicit in its Smith 438-40 Cir. 588 F.2d v. 1979) majority’s proof that “other of inconsis- lawyers previous view (concluding that who interests,” alone, standing ean never be prosecutor tent ly represented the who of sufficient to establish an actual conflict client had actual prosecuting their current interest); interest. Fitzpatrick v. see conflict (9th
McCormick,
1247, 1251-53
Cir.
869 F.2d
Smith,
interpretation of
which the
This
1989) (finding
assistance of
denial of effective
majority supports
piecemeal quotations
present
failed to
evi
counsel where
opinion,
incorrect for two reasons.
from the
exculpate current client
dence that would
First,
equivocal
decision itself is
the Smith
client).2
non-testifying former
expense of
question
proof
“other
on the
of what role
important
keep
this observation
It is
plays in
inconsistent interests”
supporting
situations,
we are faced with
such
mind when
finding of actual conflict of interest. On
one,
conflict
in which an asserted
does
as this
hand,
states:
one
Smith
two
precisely fit within either
these
case where
[a successive
situations,
In such
our
traditional contexts.
previously
counsel
a criminal defendant’s
interpreting
two-pronged
prior cases
witness], if
fails to
represented a
defendant
evaluated with
Cuyler standard should be
(1)
repre-
earlier
that either
counsel’s
show
imported
are
into the new
care before
substantially
sentation of the witness
context.
later
particularly related to counsel’s
(2)
defendant, or
counsel
representation A.
in-
actually
particular
learned
confidential
during
prior
prong
Cuyler,
formation
respect to the first
With
White,
to defen-
that was relevant
majority
that Smith v.
of the witness
concludes
(11th
case,
Cir.1987),
has not
later
then defendant
1401
articulates our
dant’s
815 F.2d
Scott,
1258,
attorney has breached
in which an
v.
F.3d
1266 & n.
cumstances
2. But see Beets
65
Cir.1995) (en banc)
Collins,
(5th
("Although
duty
loyalty.”
10
the feder-
v.
986
Beets
unblinkingly applied Cuyl-
Cir.1993),
1478,
(5th
courts have
modified,
al circuit
65 F.3d
1481
stan-
er's 'actual conflict'
‘adverse effect'
Cir.1995).
(5th
alleged attorney
dards to all kinds of
conflicts,
ethical
reading
Supreme
a careful
of the
Court
course,
actually
petitioner would never
Of
(footnote
expansiveness.”
cases belies this
omit-
majority
prove
acknowl-
both. As the
need to
Beets,
contrast,
ted)).
panel opinion
petitioner
edges,
once the
rule is that
our
following
“Together,
contained
assessment:
present
subject
"proves
matters
668,
Washington,
466 U.S.
[Strickland
'substantially
representations
re-
are
and
lated,’
2052,
(1984), and Wood v.
S.Ct.
come
arising
a
of conflict of interest
from
claim
interests.”
pe
prior
representation,
that a
simultaneous
hand, the
at 1405-06. On the other
815 F.2d
by
prove actual conflict
titioner must
ultimately
holding
described its
Smith court
“pointing]
specific
to
in the record
instances
merely
following way:
hold that
“We
suggest
impairment
compromise
or
which
an
inter-
failed to show ‘inconsistent
Smith has
of another
he has failed to
of his interests for the benefit
ests’ in this case where
proof
relationship or
have reached
party”).
adduce
of substantial
Other circuits
See,
Fitzpatrick
or
oth-
e.g.,
relevant confidential information
v.
conclusion.
same
(9th
F.2d
proof
McCormick,
1247,
inconsistent interests.” 815
er
F.2d
1252
Cir.
869
added).
(emphasis
1989) (“In
at 1406
representation, conflicts
successive
may arise
the cases are substan
ambiguity,
of interest
In
to
this
order
resolve
attorney
privi
tially
that inter
if the
reveals
useful to review our other eases
related or
pret
actual
This re
conflict standard.
communications of the former client or
leged
that,
(internal
and after
view reveals
both before
loyalties.”
divides his
otherwise
Smith,
added)).
sanctioned additional
our eases have
omitted,
quotation
emphasis
marks
than substantial relatedness
methods —other
decisions, it seems incorrect
light
In
of these
or
of confidential information —of
disclosure
say
precedents prohibit
a habeas
that our
establishing
an actual conflict
succes
petitioner
establishing
an actual conflict
Lightbo
representation context. See
sive
unless she can show either sub
interest
(11th
1012,
Dugger,
F.2d
1023
urne v.
829
relatedness or disclosure of confiden
stantial
Cir.1987)
that, in
(noting
light
state
tial information.
ethics,
legal
a substantial
principles of
Assuming arguendo
majority
attorney
question
an
existed as whether
weight
according
little
to “other
correct
crossexamining
an
former client had
actual
a
interests,”
proof
interpre-
of inconsistent
interest);4
Wainwright,
v.
conflict of
Porter
from an additional
(11th Cir.1986)
tation of Smith suffers
930,
(stating
805 F.2d
939
problem
purports
apply
in that it
“in the
petitioner
could show an
the habeas
successive
context” as
by demonstrating that
at
actual conflict
Smith,
at 859.
facts of
possible
whole. Ante
torney
alternative
“chose between
however, merely presented the traditional
eliciting
failing
courses of action such as
representation pattern wherein a
petitioner]
successive
helpful
[the
elicit
but
evidence
client]”);5
previous
lawyer’s
appeared
former client
a witness
lawyer’s
harmful to [the
addition,
In
Singletary,
against
v.
14 F.3d
560
his current client.
Porter
cf.
observed,
exist,
Lightbourne
conflict did
court observed that
4. The
court also
and the
actual
panel opinion
acknowledged,
lawyer
conflicting
case
that a
duties”
in this
was "torn between
Martinez,
prior
ethical rules
de
violation
state
criminal
to his
and current clients. See
deprive
lawyer
necessarily
her
at
fense
does
F.2d
630
client of the effective assistance of counsel. See
Freund,
(quoting Lightbo
n.
873
counsel,
peti-
of
ineffective assistance
of
represented
apparently
in Smith
that there is a reasonable
ease,
“must show
by
tioner
only once.
In this
former client
that,
unprofes-
but for counsel’s
probability
contrast,
of actual
allegations
one of Freund’s
errors,
proceeding
the result
sional
type
of successive
conflict involves different
A
different.
reasonable
have been
would
the
Freund contends
representation.
to un-
probability
probability
is a
sufficient
Duncan, P.A.,
Foley,
&
of
Colton
law firm
confidence in the outcome.” Strick-
dermine
trial, previously
him at
represented
which
668, 694, 104
Washington,
v.
466 U.S.
land
separately-tried co-de-
represented Trent —a
(1984).
2052, 2068,
L.Ed.2d 674
As
80
S.Ct.
appear as a witness
who did not
fendant
however,
recognize,
majority claims to
the
range of civil and
Freund’s trial —in a broad
presumed for ineffective assis-
prejudice is
early
1970s until
criminal matters from
lawyer’s
that are based on
tance claims
may
majority
be correct
1984. While the
and that meet the two-
conflict of interest
interpretation of
should never-
that its
Smith
Cuyler
In the conflict of interest
prong
test.
presented by
the context
theless extend to
context,
therefore,
from
we are forbidden
31,
claim,
n.
this does
this
ante at 859
claim
rejecting an ineffective
sim-
assistance
previ-
legal interpretation our
that the
mean
petitioner
ply because we think
given to the two elements of
cases have
ous
again.
probably
guilty
be found
tried
relatedness and
Smith test —substantial
information—
apply
confidential
prejudice inquiry,
disclosure
of a
we
Instead
mechanically
applied
be
in this new
three-part
by
majority
should
test outlined
point
I address this
more
actual
factual context.
in order to determine whether the
H.A.,
fully
alleged by
petitioner
conflict of interest
infra.
lawyer’s perfor-
“adversely affected his
Strickland,
692,
at
104
mance.”
466 U.S.
B.
Cuyler,
at
(quoting
at 2067
446 U.S.
S.Ct.
prong
Cuyler,
to the second
As
1718);
McConico,
348, 100
at
accord
S.Ct.
panel’s
of our
majority adopts the
statement
(“A petitioner need not
at 1548
919 F.2d
effect.6
I
test for adverse
While
circuit’s
the trial would have
show that the result of
is faithful to our
agree that
this test
interest,
conflict of
been different without the.
decisions,
unwary
recognize
I
that an
also
adverse effect
only that the conflict had some
way
effectively
apply it in a
court could
v.
performance.”);
counsel’s
LoConte
prej-
petitioner
prove
requires the habeas
(11th Cir.1988).
745,
Dugger, 847 F.2d
754
following
on the
udice. The
observations
recognized, how-
Supreme
Court has
As
help
application of our test will
courts to
ever,
precise
“it is difficult to measure
possibility.
this
avoid
representation cor-
effect on the defense
Strickland,
by conflicting interests.”
petitioner
required
rupted
habeas
When
692,
As a
at 2067.7
a claim 466
104 S.Ct.
prejudice in order to establish
U.S.
show
sentencing
plea negotiations
requirements.
pretrial
and in
test consists of three
6. This
1013,
(11th Cir.1989)
summary,
petitioner
process.’”
a habeas
must:
475,
Arkansas,
1)
Holloway
U.S.
point
plausible
(quoting
490,
to some
alternative defense
strategy
2)
might
pursued;
tactic
have been
trial record from a time the peti- that was made the after problems potential pit- light In slip case became tainted. tioner’s We would I, necessary part in it is falls identified dangerously inquiry to prejudice close a if we majority’s the determination that the revisit by hypothe- pinpoint tried tainted “facts” not of Freund’s case do meet either facts sizing at whether or not the evidence offered prongs or effect actual conflict adverse trial would have been the even if con- same possible to Cuyler. It would be undertake flict-free defense counsel had followed an by articulating an alternative test this task strategy. alternative mechanically applying actual conflict and for along test ad- this with the above for prejudice inquiry A de can also insin- test — facto underlying facts verse effect—to in uate itself into our adverse effect test Freund’s case order to determine whether way. regard our re- another With third effective assistance of he was denied the quirement the petitioner must link his however, approach, This has two lawyer’s counsel. lawyer’s with de- actual conflict First, it is difficult to significant drawbacks. forgo an strate- cision to alternative defense disagreeing articulate a reasoned basis for question: gy, danger following lies in the (or a to apply with court’s decision not to point at should a what labels, apply) abstract such as those that lawyer a court find that the has made such prior Cuyl- appeal’ interpreting our cases danger, In order decision? to avoid this er, given to a set facts without a clear conclusively decision must be deemed made appreciation of the constitutional lawyer, ethical and at first moment that influ- policies underlying difficulty interest, the labels. This by an actual conflict of elects enced majority’s disagreement is illustrated strategy. forgo reasonable alternative made, panel’s with the law conclusion the taint of Once this election has been prior representations firm’s irrevocably lawyer’s conflict of interest “substantially represen- related” to its later petitioner’s case. If we has affected Second, important tation of Freund. is imported an “cure” into element of instead note that two of the three of actual by asking sources linkage requirement whether this alleged conflict Freund —the law firm’s lawyer subsequently her reversed elec- prior (in and, so, of Trent and Trent’s part) this tion whole or whether allegations taint, against the firm’s members —do purge the we reversal was sufficient to correspond to either of the two unguided speculation in or- tradition- indulge in would interpreted al in which we contexts her initial tainted der to determine whether cautious, Cuyler. quite We need to be ultimately harmless. cannot We election therefore, applying any test derived from lawyer’s truthfully se- measure what prior interpreting Cuyler our cases quence petitioner, has of choices cost (introduc- present supra part facts. See I why type inquiry prejudice into that is tion). is forbidden. sum, approach our test A more distinction between informative avoids begins conflict of interest these drawbacks effect” in the a look over the “adverse firm’s “prejudice” other shoulder at the time and our test for when its context text). ceptible intelligent, regarding application.” speculation the cost of the evenhanded Such Id. petitioner 98 S.Ct. at is "sus- of interest conflict obligation was the A second ethical represent Freund. As members decided duty 5 of the Florida Code to under Canon part explains, this look reveals that the II.B. professional judgment independent “exercise initially ethically-based law firm faced two of a client.” Fla.Code of Profes- behalf repre- conflicts of interest that burdened its (1986). Responsibility, A law- sional Canon described in sentation of Freund. As yer required to avoid conflicts of interest II.C., arose after a third conflict of interest duty. Barclay v. in order to fulfill this represent Freund that began the firm (Fla.1984). Wainwright, 444 So.2d III re- this burden. Part then exacerbated Therefore, prohibited repre- interpreting Cuyler turns to our cases lawyer’s senting potential client when the to determine whether of these order be, judgment reasonably professional will *34 law- finding a that Freund’s eases forecloses financial, be, by his busi- affected “own by con- yers, burdened as were these interests,” ness, property, personal or unless interest, provided ineffective assis- flicts of gives client his informed consent. Fla. tance to Freund. DR Responsibility Code of Professional 5- 101(A) (1986). addition, lawyer In pro- a B. representing hibited from a new client likely representation is to have an adverse 1. lawyer’s judgment effect on the on behalf of Freund, deciding represent In to the law client, give their another unless both clients Duncan, P.A., a Foley, firm of Colton & faced informed consent. See Fla.Code of Profes- prior repre- difficult dilemma because of its (C) 5-105(A), Responsibility sional DR counsel to sentations of Trent and Mills. As (1986).9 Freund, duty provide him the firm had a to competent representation to which While the owed these two ethical obli- with the alone, gations a under the Sixth Amendment. to Freund it owed third he was entitled course, duty, obligation to to discharging the firm’s ethical Freund as well as its obligation obey Trent and This obli- lawyers had an to Florida’s former clients Mills. confidentiality legal gation duty ethical was the firm’s rules of ethics. One relevant Code, duty 4 which obligation was the firm’s under Canon 7 under Canon of the Florida requires lawyer “preserve the confi- the former Florida Code of Professional a to represent to client zeal- dences and secrets of a client.” Fla.Code Responsibility8 its (1986). 4 ously. duty requires lawyer Responsibility, Professional Canon This that a “be loyal every client and The term “confidences” refers to information to her ensure by attorney-client privilege, professional protected decision she makes on behalf of to other in- client is in the client's interests.” the term “secrets” refers best while Freund, professional re- lawyer gained during A who formation requested be intentionally prejudices lationship inter- the client has or harms the “that duty. or the disclosure of which ests of her client violates this held inviolate likely to Responsibility embarrassing DR or would be Fla.Code of Professional would be 101(A)(3)(1986). Fla.Code of be detrimental client.” 7— person byor to another client or to a third 8. At the time of Freund's members of interests,” governed by lawyer Florida Bar the Florida Code rea- lawyer's unless the own Responsibility. of Professional The Florida Code sonably represent client that he can believes replaced Chapter in 1987 4 of the Rulés Rules the client consents after consultation. Bar, Regulating the "Rules of Florida entitled 4-1.7(b) (1994). Regulating With the Fla. Bar Professional Conduct.” See 117 F.3d at involving respect former to conflicts of interest clients, 4-1.9(a) lawyer provides a who Rule in a matter must represented a former client has Regulating currently 9. The Rules the Florida Bar person "represent in the same not later another relating provide detailed a more restrictions substantially which that related matter in or a lawyer's duty independent profession- to exercise materially adverse to the person's are interests judgment. example, prohibit al For the rules client unless the former of the former interests lawyer representing from a client if the exercise Regu- Rules client consents after consultation.” lawyer's professional judgment "may of the be 4-1.9(a) (1994). materially lawyer’s lating responsibilities the Fla. Bar limited 4-101(A) Responsibility DR in Freund’s case who could have been Professional (1986). duty, lawyer arising her charged could with several crimes of this Because revealing participation surrounding a client’s subject discipline for events Walk- be using materially or for them ei- ad- secrets er’s murder11 —with interests confidences or interests, however, disadvantage of client or for ther to verse person a third the benefit of firm faced a substantial likelihood without the client’s informed consent. See obligations Freund would come into ethical Responsibility DR Fla.Code of Professional conflict with its ethi- direct irreconcilable 4-101(B) (1986); Piper Ford obligations The cal to its former clients.12 Aircraft (Fla. 5th DCA Corp., question So.2d initial that-must be answered 1983); Regulating the Fla. see also Rules significance order determine 4-1.9(b) (1994).10 Bar potential to our ethical conflict Sixth analysis Cuyler Amendment under is this: duty confidentiality affords broad lawyer’s duty Sixth Amendment does protection confidences and se client’s provide competent rep- its current client with Buntrock, 419 See Buntrock v. So.2d crets. require disregard resentation it to the rules (Fla. 1982) (noting 4th DCA respect governing of ethics its conduct protection attorney-client evi- than broader *35 to its former clients if to do so would benefit protection dentiary privilege). This “exists the its current client? If answer to this regard nature or source of without yes, question inquire is then we need not the the fact that others share information or further into the of whether firm issue the knowledge.” of Professional Re Fla.Code actually conflicting was confronted with ethi- (1986). sponsibility protection 4-4 The is EC case; obligations in cal this if faced with such lawyer pre must forever perpetual; a conflict, a firm simply the be forced to every and secrets serve confidences ignore its duties to clients. ethical its former client, ongoing or former. See Fla. whether no, however, If the is we answer should Responsibility EC 4-6 of Professional Code proceed to the firm actu- (1986); determine whether Regulating Fla. Bar 4- Rules 1.9(b) ally obligations in (1994); conflicting faced ethical Farm Mut. Auto. Ins. State (Fla.1991). K.A.W., adversely represen- this case that its 632 affected Co. v. 575 So.2d tation of Freund. client, a deciding accept to Freund as question it this required to determine that It seems clear that initial violating represent any negative. him be in the If we could without must answered obligations owed were to conclude that the Sixth above ethical Amendment represent- previously required lawyers him. Given that it to violate their ethical obli- had gations ed to in to people Trent, provide two Freund’s co-defen- former clients order — dant, Mills, prosecution competent representation a witness to their current lawyer a to a 10. The Code did allow reveal serve confidences and secrets of former two client's confidences or secrets in limited quite It client become irreconcilable. situations, neither which relevant in this likely lawyer that the obtained information in the Responsibility case. See Fla.Code Professional former that could be useful 4-101(D) (1986) (providing lawyer DR that a representation. current Duncan Merrill (1) may reveal a client's confidences or secrets Pierce, Smith, Lynch, Fenner & 646 F.2d when to do a tribunal after ex ordered so (5th 1981) ("Whenever an Cir. Unit B June (2) hausting appellate remedies or to intent com attorney represent an to seeks to interest adverse crime). amit client, possibility of a former arises attorney, intentionally or whether inadver with For list of the crimes which Mills could tently, present to client will reveal his confiden Freund, charged, been see F.3d at during pre to tial information entrusted him his n. 16. representation.”). lawyer vious If the used this client, 12. The above can three ethical duties discussed representing information his current place obligations conflicting lawyer on a cer obligation of would violate his ethical confiden example, tain circumstances. For when a cur tiality to If his former client. he refrained from adverse rent client’s interests are interests information, however, using the he would violate lawyer represented of a former client whom duty zealously represent his current client. his matter, lawyer's duty represent in related zealously duty pre the current client case, just beginning of Freund’s clients, conclusion At the lawyers who heeded our barraged lawyer lawsuits their would be time that his Robert prior to the and would face state bar disci- former clients rely on Foley announced that Freund would proceedings. Irrespective of whether plinary defense, insanity an unburdened and com- an successful,13 public’s these actions were petent lawyer could have chosen to follow profes- ability legal confidence in the of the following of the four reasonable defense would be sion to hold secrets confidence First, strategies. could have at- damaged. ability of the irreparably The plea bargain for Freund tempted to obtain stan- promulgate effective ethical states exchange cooperation in the for Freund’s regulate the conduct dards in order to people prosecution of the other who State’s substantially under- lawyers would also be night mur- present on the either (de- Duncan, at 1027 mined. See Mills, helped to conceal the der crime— context, disqualification scribing, in the civil Daniell, and Fullerton.14 Angelilli, allowing an at- consequences of the adverse torney of his former to reveal confidences possible strategy rely A second client). lightly consequences are not Such insanity effectively ad- defense and thus no reason to as- presumed, and there is be Ralph Freund murdered Walker. mit that by the are warranted Sixth sume significant damage that Given the brain Amendment. of his Freund sustained as result attempt, symptoms which caused suicide ability appre- such as reduced to reason and therefore, firm, ignore could not actions, consequences of his see ciate the obligations to its former clients ethical strategy 117 F.3d at compe- attempting provide Freund with *36 attorneys in some basis fact. As Freund’s that consistent with tent was already long him after informed obligations him. In order to its ethical defense, rely insanity elected to on an howev- determine whether the firm’s er, high proba- a such a defense did not have by obli- of Freund was burdened its ethical Freund, bility 117 F.3d at of success. See Mills, gations to Trent and should ask two we First, questions. should consider what 1568. we strategies competent or tactics a law- defense Third, impli- competent counsel could have
yer
by
obligations to
not burdened
ethical
by
indirectly in
murder
cated Trent
Walker’s
Trent and Mills would have considered. Sec-
contending that Freund killed Walker but
ond,
competent
should ask whether a
we
murder
criminal intent to commit
lacked the
lawyer
obligations
ethical
to Trent and
with
and con-
was under the dominion
because he
prior represen-
conclude that his
Mills would
Trent,
killing and
who ordered the
trol of
any way
tation of these clients
restricted—
Freund,
of his mental
that
because
knew
ability
any
or
foreclosed —his
to use
even
state,
carry
Freund’s
strategies
representing
out the order.15
these
Freund.
would
killing
premeditated,
possible
lawyers
of Walker was not
would be able to
obligation
Freund's
It is
13.
their
argument
invoke their Sixth Amendment
lacked the
well as an
that Freund
as
client as a defense in these actions.
kidnapping. See
necessary
to commit
intent
Freund,
at
n. 89.
subject
prosecution
14. Fullerton was
for his
ultimately
concealing
convicted under the
was
role in
the crime. For a list of the
If Freund
statute,-
people
felony-murder portion
with which the other three
could
this conten-
crimes
of the
Freund,
charged,
ward Walker yers obligations who to Trent bore ethical leading up to the murder and the events never have taken case. Freund’s Such provided a motive for the murder him with lawyers undoubtedly would have concluded indication, however, itself;18 there was no ability among their choose above feelings. that Freund had such options solely in with accordance directly implicating An- Freund was interests, evidence required by best their ethical gelilli’s uncorroborated that she duty representation, of zealous was restricted stabbing making motions obligations Specifi- saw Freund their ethical Trent. knife, cally, obligation confidentiality but she also testified that she ethical *37 this," "ignore strategy just was not foreclosed Freund's said Trent would to 16. This going Angelilli. he lawyers psychiatrist. but was to have sex with and See confession to his grabbed magnum pistol Walker then a .357 from part III.B.l. infra Angelilli gun table came with and toward one hand and the bat in the other. in Trent example, Fla. For this 17. See R.Crim. P. 3.220. magnum away and knocked the .357 shot at filing of states that after the an indictment or rule pistol, Walker a .45 but the bullet a with hit information, deposi- "the defendant take the dining gun pointed then room chair. Trent his any person upon of tion oral examination who Walker, him, yelled at handcuffed and of threats may have relevant to the offense information accompanied by epithets racial him. death — One of the threats that Trent —at charged.” yelled was: "You're dead, Ralph nigger, dead Walker! You're and appear majority do 18. These facts in goin' you’re your home mama in a to box." opinion. panel noted in of As the its discussion (one Trent then called Bruce Fullerton henchmen) of his murder, Freund, leading up the events see bring and asked him to a steamer 1550-51, (who Walker was 117 F.3d at African- trunk, sledgehammer, and a chain saw to American) began Angelilli whispering to that he apartment. ignored apparently Trent's Fullerton ignored to wanted him, have sex with her. When she evening, in these instructions. Later Trent loudly upset and Walker became demanded repeatedly epithets again used racial when he Mills, (one Trent then told ran a sex. who female employees) of confided to Daniell Trent's service, up your girls always fantasy killing to one of and escort "call that he had had a of a man girl Ralph get sodomizing over here for [Walker].” a black of race and then the man's Walker's Mills, body. any girls” danger, "her in put afraid to of pretended call and told to make the Trent course, anyone. she could not reach Walker then went 19.Of there was also evidence Trent Walker, lunged into Trent's bedroom and returned with alu- an at Walker had kicked knife, with his bat, yelled minum he Walker baseball which slammed onto and threats of death at earli- evening. at with table such force that he dented the bat. He er in history This of lawyers Trent restricted extensive that Freund’s owed firm still Trent meant owed an ability their to claim either that Trent killed obligation confidentiality extensive ethical killed Walker while Walker or that Freund during representation of Freund. The its This Trent’s control. obli- was under alia, inter prohibited, firm thus ability gation to obtain also restricted their disclosing any gained during information it Freund in a significant concessions for professional relationship Trent with In plea bargain prosecutors. with State or- likely such disclosure was to be detrimental necessary why, it is to der to understand prohibition particularly Trent. to This scope of the firm’s examine the nature and light broad in the wealth of potentially prior representation of Trent. gained detrimental information long-standing wide-rang- and Trent had a representing Trent. himself ad- while ing relationship firm. legal with the The mitted, hearing in at his held in a lawyers represented Trent firm’s broad his sever on motion to his and Freund’s range matters from the separate of civil and criminal dis- prosecutions for that he 1984; early they represented multiple in participation until closed his criminal 1970s involving drugs prostitution activities and many his referred mother’s estate. Trent they members of the firm after advised him legal needed employees his and friends who completely that all would be communications firm, including representation to the Eleanor Trent also confidential. discussed relationship Trent and Mills. The between exploits lawyers and his use of his sexual that of deeper the firm was also than attor- sexual devices handcuffs —a device such ney client. a fixture at and Trent became that Trent used to restrain Walker offices, employees his the law firm’s Furthermore, appropriate the murder. it is offices often in order use the came to the firm, ethically to assume that the bound to copier equipment. other office competent act as counsel zealous performed design Trent also interior work drug prosecutions, Trent in assault offices, Foley for as well as for information from its client obtained all parents Duncan. Colton and helpful working out a would have been prosecutions and, criminal agreement Two of the which plea the event Trent’s represented particularly conviction, argu- presenting the firm Trent were an effective A sentencing. competent the firm’s later of ment relevant to information, eliciting example, allegedly Freund. brandished indepth gain appreciation seek gun public on street and threatened character, good in- and bad sides Trent’s people. police stopped kill two When cluding past activity, in order criminal days car a few later in order to prepared be make surprises avoid charges, him on assault found the arrest possible arguments his client’s be- best drugs diazepam drug that was Walk- —a *38 half. er’s when bloodstream he died—and metha- possession. qualone in Trent’s Trent was confidentiality obligation This seri- broad possession aggravat- charged drug with ously ability hampered the convinc- firm’s assault, ed State initiated forfeiture ingly implicate to Trent in Walker’s violent proceeding against by Trent’s car relation to arguing that murder —whether Trent possession charge. represented firm The personally killed Walker or that did during proceed- by limiting the entire forfeiture so while under Trent’s control — ing. prosecutions, ability present jury In the criminal firm to a evidence of its to May history of vi- ultimately proclivities withdrew counsel in 1984 Trent’s as sexual olence, pretrial possession, and other filing ap- diazepam after motions several The firm also would be pearing in court on criminal conduct.20 Trent’s behalf. tive, intent, identity. knowledge, regarding prior opportunity, such bad While information addition, 90.404(2). § solely In generally prove to See Evid.Code acts admissible Fla. character, propensity even if information could not have been or bad conflict-free this counsel evidence, used things it could have been prove it to such mo- offered as could have used undercover kilogram of cocaine to an effectively to sell cross-examine unable to 1984, April In several weeks police officer.21 event that matters regarding these murder, of- Trent met Mills and before jointly Freund. Even he was tried ways with the co- help her two fered to they ulti- separately, as tried they were facing. trafficking charges that she caine were, be unable the firm would mately having as an First, her serve he discussed prior repre- in its anything it learned use Second, he police. the local informant for him. blame on to throw sentation of Trent to the firm for referred Mills confidentiality obligation firm’s broad The Roger met with charges. Mills then on the ability negoti- its also constrained to Trent apartment legal seek Colton agreement for Freund. plea ate a favorable charges, and she discussed the on the advice 1457, McLain, 823 F.2d v. See United States surrounding the circumstances facts and Cir.1987) (11th Holloway Ar- (citing Freund, 117 F.3d charges with Colton. kansas, 98 S.Ct. 435 U.S. at 1577 n. 82. (1978)) (“Exploring pos- 1181, L.Ed.2d 426 apparent begin- from the Because it was important part of plea negotiations is an sible prosecution that Mills would ning of Freund’s of a crimi- adequate representation providing witness, the firm was faced prosecution abe client, easily precluded by part is nal and this consulting In with Mills with a dilemma. interest.”). seeking such a a conflict of charges, trafficking about her cocaine lawyers for competent plea agreement, very likely information that it firm obtained attempted certainly would impeach her on cross- could use Trent, prosecutors that convince State example, For record examination. worthy pun- person most firm learned that strongly suggests that the Providing murder. ishment for Walker’s firm frequently used cocaine. The cer- Mills long on Trent’s information prosecutors with tainly learned that Mills was a friend of criminal conduct history of violence trying help her Trent and that Trent was very persuasive method of jail through cooperation would have been with the avoid time cross-examining the firm goal. police. this Because Mills on these accomplishing While questions issues would raise as to her credi- obligation of represented Freund had an bility pro-Trent bias and thus aid confidentiality prevented it from disclos- defense, it would also violate the likely ing to be detrimental information continuing obligation ethical of confi- firm’s Trent, however, use method. it could not ulti- dentiality Douglas Mills.22 Duncan therefore, Clearly, re- firm’s decision mately did cross-examine Mills about her garding to defend Freund was bur- how best assistance, trafficking charges and Trent’s from the start its ethical obli- dened having stopped short of Mills admit but he gations to Trent. that Trent had referred her to his law burdened, was also albeit less of Freund representation. a conflict-free Because severely, by prior representation of Mills. in order could have elicited this fact latter did not While this burden affect bias, suggest it is clear to discredit Mills and pursue insanity firm’s decision to defense obligation of confiden- that the firm’s ethical strategies one the other rather than dis- tiality representa- to Mills also burdened its above, cussed it did affect the firm’s tactics in tion of Freund. cross-examining key prosecution Mills—a witness at Freund’s trial. *39 demonstrates, representation
The firm’s
of Mills related
above discussion
As the
conflicting
ob-
early
attempting
lawyers
in
faced
ethical
to Mills’ arrest
1984 for
Freund’s
years
effectively
mandatory
fifteen
deposing
minimum sentence of
conflict-free counsel in
Trent
$250,000
cross-examining
imprisonment
fine. See Fla.
him at trial.
and a
893.135(l)(b)l.c. (1995).
Stat. ch.
21. Mills testified at Freund's trial that she was
majority’s suggestion,
trying
kilograms
Contrary
this ob-
to sell four
of
22.
to the
cocaine.
by
confidentiality
police
requested
ligation
was not waived
undercover
officer
of
received
Freund,
III.A.2.;
only
$37,000.
kilogram,
part
pay
one
see
for which he was to
about
Mills. See infra
drug
Mills’
1578 n. 83.
serious
offense carried a
117 F.3d at
that the
argument could be made
they began
A second
ligations
the moment that
hand,
ethically-based con-
effect of these
representing
On
one
adverse
Freund.
representation
Freund
firm’s
of
represent
zeal-
flicts on the
obligations to
Freund
firm’s
Mills,
As
one could
de minimis.
independent professional was
ously and exercise
Duncan’s
was
all of its
claim that
cross-examination
on his behalf meant that
judgment
sug-
impugn
credibility
her
professional
had to be
Freund’s
sufficient
decisions
revealing the fact
gest
of
without
conflict
bias
best interests
untainted
hand,
her to
firm. As to
obligations
referred
Duncan’s
the other
Trent
interest. On
Trent,
any adverse
placed a
it could be claimed that
confidentiality to Trent and Mills
of
the law firm’s
ability
implicate Trent
suffered because
heavy
on its
effect Freund
burden
disregard
murder,
obligations
initially
led
favorable
to obtain a
ethical
Walker’s
Freund,
in Walker’s
impeach
option
implicating
Mills’
of
Trent
plea bargain for
or to
course of
by suggest- murder was later cured in the
testimony on cross-examination
therefore,
prosecution.
prosecution
ing
surprisingly,
Freund’s
As
Not
bias.
unfolded,
example,
against
quite early
for
the eases
in its
decided
trial,
Trent and Freund were severed
pursue any
of
not to
of these strate-
after
did not
pled guilty
a mistrial and
gies.23
the firm’s ethical dilem- Trent
Given
Freund,
indirectly im-
strategies
testify against
use
Duncan
that it could
mas restricted
Freund,
during his
plicated Trent in Walker’s murder
defending
conclusion seems
closing argument
firm’s
to the
portion
inter-
inescapable that an “actual conflict” of
Foley directly
“adversely
perfor-
jury at Freund’s
est
affected” the firm’s
How,
then,
implicated
during
portion
his
of
representing him.
mance in
claims,
closing argument. Both of
Cuyler
under
that Freund
these
could we conclude
however,
right to
commit a
mistake:
Amendment
fundamental
not denied
Sixth
“Monday
judge in
of a
put
counsel as a
the role
assistance
trial
effective
must determine
ethically-based
morning quarterback”
conflicts of
who
result of the firm’s
prejudiced by
the firm’s
possibilities
men-
Three
deserve
whether
interest?
I.B.,
explained
part
As
conflicts.
ethical
tion.
forbidden; prej-
type
inquiry
supra, this
First,
precedent
noted
our
it could be
presumed
once actual conflict
udice
clearly
that a violation of state
establishes
effect have been established.
adverse
lawyer
rules
a criminal defense
ethical
that these two
necessarily deprive
Finally,
it could be claimed
his client of
does not
Freund,
not establish
conflicts of interest did
of counsel. See
ethical
effective assistance
“adversely affected”
(citing Lightbourne,
n. 66
an “actual conflict” that
lawyer unable rep- during its clients, information precedent our is consis learn confidential separate relevant Mills that was lawyer has the conclusion that the resentation tent with ad- are supra case. Such contentions note Freund’s actual conflict interest. See III, dressed infra. however, strategy claiming that Freund Ultimately, implicate did firm's defense the firm during indirectly in murder was insane. For Walker’s the murder but had committed addition, trial. why changes Freund's in defense these a discussion Foley suggested closing argument in his Robert strategy not alter the conclusion do jury at Freund’s trial that Trent ethically-based adverse- conflict of interest firm's *40 personally and then told committed murder Freund, part see ly affected its it; it was Freund who did this belat- Freund that and note III.B.l. infra. obviously suggestion with the was inconsistent ed occasions, many pay- often as prostitutes C. Finally, alleged legal services. ment ethically-based conflicts of inter- The two partici- lawyers had attended that both not the con- above were est discussed involving many parties” pated in of his “sex adversely repre- firm’s affected the flicts that light of these prostitutes. cocaine conflict, rooted A third sentation of Freund. again changed posi- allegations, than in its in own interests rather the firm’s argued the “deli- tion on severance party, arose obligations to a third ethical pertaining rules nature” of the ethical cate representation of Freund had the firm’s after made cross-examination conflicts of interest strongly rein- already begun. conflict This op- inappropriate. the State’s of Trent Over aversion, in initial rooted forced the firm’s judge granted a sever- position, the trial then confidentiality that it owed duty of the ethical ance. Trent, implicating strategy of to a defense murder. Trent in Walker’s gave strong the firm a allegations These hearing grew out of This third conflict incentive continue with additional grant whether to held to determine defense, pub- insanity which it had Freund’s prosecutions of the murder motion to sever early representa- in licly adopted quite separate trial. The Freund for Trent and (and easily reject any could not in tion thus ground for Trent’s motion involved main event), use a defense in rather than either that arose discussed above ethical conflict implicate separate trial that would Freund’s representation of Trent: firm’s from the plea agreement for Freund Trent or obtain infor- acquired had confidential law firm adversely impact that would Trent. Trent representation that it during mation quite it clear that he would re- had made trial. detriment could use to Trent’s any attempt by law firm spond to behalf) (on initially While the firm attempt harm such his interests. The next severance, it later the State supported joined produce certainly have incited Trent to could resisting separate in trial. See charges, support of his which evidence Trent, n. 1559. at 1557 & Foley and Colton be- could have resulted by law presumably upset his former ing disciplined by prose- Bar or the Florida by prospect opposition to severance and surprising, cuted the State. It him, against might that it use his confidences therefore, lawyers presented that Freund’s hearing. began He testified at the severance insanity an defense at trial. attorney-client relationship by detailing the true that Freund’s Rob- developed that had between himself and the While representa- Foley eventually suggest did his clos- During firm. the course of the ert tion, Foley ing argument at Freund’s trial that Trent Trent had confided to and Colton affairs, secrets, then personal may have committed the murder and his business it, who did participation multiple criminal activities told Freund that it was Freund Moving proposition involving drugs prostitution. this fact does not belie helped description personal relationship allegations convince the of his with Trent’s Colton, insanity Foley pursuing made several firm to continue de- seri- trial, Trent allegations against lawyers. By both He fense.24 the time of Freund’s ous guilty second-degree already pled claimed to have delivered cocaine to their Therefore, friends, following Fo- at the firm’s offices. He murder a mistrial. sometimes closing25 no provided ley’s spontaneous musings also claimed to have both men with claim, Foley’s point applies was not a can indicated that statement This Duncan's during portion closing planned made of the firm’s the firm’s defense of Freund. argument at Freund’s the evidence when Fo- Duncan admitted that he was shocked indirectly implicated Trent in Walker’s murder. ley the statement made the statement and that insanity tes- defense. Duncan hindered Freund’s Foley’s unsupported comments were Foley why he had made tified that he later asked evidence that Trent Walker. murdered statement; Foley that he did it to answered questioned hearing When at the held on Freund’s "appease" Freund's mother. judgment motion to vacate the and sentence in 3.850, pursuant his case to Fla. R.Crim. P. Dun- *41 A. potential to harm Trent’s longer had the interests. rejects majority the claim that the The
III. firm, faced an actual representing obligations of because of conflict interest demonstrated, has As the above discussion history arising long representing from its of conflicting allegations the firm’s Trent’s and majori- arguendo Assuming Trent. that significant obligations re- imposed ethical analyze by applying this ty is correct to claim ability pursue cer- on the firm’s strictions problematic interpretation Smith26 its of options that conflict- tain reasonable tactical solely prior representation of the firm’s defending could have used free counsel posses- diazepam on the assault words, the use of these Freund. In other charges,27 apparent it the result sion that options with the firm’s would conflicted analysis majority’s supported is not of (its obligations loyalties” “other ethical precedents. our (in Mills) avoiding and “interests” Trent and consequences any potentially harmful of Smith, majority’s view of Under the Freund, 117 allegations). F.3d at petitioner may habeas be able to demon- (quoting Fahey, United States if he first strate an actual conflict of interest (1st Cir.1985)) (noting that in represen- establishes that “counsel’s earlier effect, a to establish adverse habeas order substantially ... particularly tation petitioner that a must demonstrate reason- later of related to counsel’s strategy or able alternative defense tactic Smith, at 1405. the defendant.” “was might pursued have been inherent- “substantially The Smith court derived this attorney’s ly in with ... other conflict particularly primarily from related” test interests”). firm thus loyalties or The decid- addressing prior standard for our cases of early ed lawyer in a matter con- disqualifying a civil It pursue options. seems these client, ABA cerning a as as from former well therefore, clear, that an “actual conflict” of Professional 1.9. See Model Rule of Conduct “adversely per- affected” firm’s interest 2; supra see note id. at 1406 n. also defending part Freund. This formance equivalent profes- of (quoting Florida’s rule cases considers whether of our conduct). majority relies sional The Cuyler interpreting finding forecloses disqualification sup- part on a case civil lawyers, burdened Freund’s port its that the assault determination above, pi'o- of the conflicts interest discussed charges which the diazepam possession Freund. ineffective assistance to vided were not previously represented firm particularly to its “substantially and related” part of this organizational scheme de- The following Freund. representation of As majority’s analysis liberately tracks of however, shows, disquali- civil our discussion part Ante IV.C. Part III.A. the merits. support the jurisprudence does not fication separate three sources of actual reviews the majority’s conclusion. by Freund. Part conflict demonstrated argu- majority’s thrust adverse essential III.B. then examines two effects ment the similarities between conflicts. can be linked these I.A; part supra note previously, problematic see also explained it is under Smith. See 26. As accompanying supra, text. mechanically apply majority Smith—and interpreting cases the two elements of our other argument test—to the Smith H.B.2., part supra, firm had 27. As revealed in gave prior representation of Trent rise to relationship extend- with Trent that an extensive troubling It is also actual conflict interest. prosecutions. beyond two As ed well these that, precedent despite contrary, great our relationship, deal learned proof majority gives weight potentially little to “other detrimental of information that diazepam proof majority’s interests" —such as conflict- focus on the inconsistent Trent. The unduly obligations principles legal prosecutions ing eth- assault alone thus seems under the establishing actual narrow. a means conflict ics—as *42 884 not need to [past representation] does prior repre- in The involved the firm’s
offenses in subsequent repre- present action] the the [to and its be “relevant” sentation of Trent “substantially es- evidentiary are not sufficient to re- sentation of Freund sense be present relationship because be akin to the a tablish substantial It need lated.” subject mat- persons “myriad the way reasonable factors differentiate action in a Ante at 864. representation.” important in- ter of each understand as issues the majority support cases to The cites two a volved. The existence of “substantial related- general proposition that substantial relationship” case before the [in court] the subsequent prior and exists when the ness parts Where is self-evident.... very the same representations concern past present action and transactions, subject events, mat- criminal or matter, very subject rea- the same concern v. United States ter. Ante (citing at 864 agree they are sub- minds must sonable Martinez, (5th Cir.1980); 630 F.2d 362 stantially related. (In re Kraft, Inc. Alton Box Board Co. added). sharing Id. (emphasis While the Litig.), 659 Corrugated Antitrust Container subject matter is thus sufficient to es- same Oct.1981)). (5th A 1346 Cir. Unit relatedness, the tablish substantial Kraft however, cases, support Neither of these necessary. clearly states that it is not court ex- proposition that substantial relatedness All that need be shown to establish substan- supra note only situations. See ists these past is that action rea- tial relatedness the Martinez applied court (noting 4 sonably important as could be understood substantial test more abstract than Smith’s present one. the issues involved Kraft, test); see also relatedness Applying the definition to the facts fact, provides case In Kraft Kraft case, apparent the firm’s of this it is substantially definition of substantial broader prior representation of Trent on the assault disqualification civil con- relatedness in the diazepam possession charges28 reason- text: (1994) ("Unless § majority Freund failed to case. See 28 U.S.C. 2255 28. The contends that hearing records of the case at the Rule 3.850 motion and the files and conclusively introduce evidence concerning prisoner scope of the firm’s show that the is entitled to and nature relief, grant including rep- prompt prior representation its no the court shall ... of Trent— thereon....”); diazepam hearing Governing on the assault and Rules Section resentation of Trent failure, possession charges. however, Proceedings Ante at 862-63. This the United States District Courts, ("It prevent -just advisory as it did not *43 police.30 facts murder, cooperation with the These in the it er’s information learned suggest have been used to on cross- could diazepam posses- the representing Trent on of that Mills was biased in favor in examination charge proving useful sion would be likely to and thus accuse Freund Trent injected diazepam. with Simi- Walker in falsely pro- murder in of Walker’s order firm larly, information that the learned charge tect Trent. the representing Trent on assault that Trent com- proving be useful in majority if the firm argues even part killing. supra See mitted the violent learn relevant confidential information did firm the (describing information that II.B.2. Mills, representation of confi during its the Trent); learned from see nature of information “ceased to dential the (discussing infor- n. F.3d at 1576 how this “everything exist” when Mills testified in a mation could be used at trial deposition firm in that she had told” the Trent). therefore, Clearly, the deposition of by in pres counsel Duncan’s taken Trent’s representation sub- prior of Trent and firm’s trial. at prior to Freund’s Ante 866. ence representation sub- sequent of Freund were argument incorrect for two reasons. This stantially sub- related under While Kraft. First, testimony the Mills’ did not relieve always stantial relatedness is not sufficient duty confidentiality her. firm from its of an of under establish actual conflict interest by duty A of confi remains bound majority’s the view of can —at the Smith dentiality though “even the same information precedent our does very least —be said that sources,” Bun discoverable from other firm the foreclose the conclusion that not trock, regard 419 So.2d at and “without of an actual conflict of interest because faced fact the [infor ... that others share representation of Trent.29 prior its Respon Fla.Code of Professional mation].” Second, 4-4 if Mills’
sibility EC
even
(1986).
operated
could have
to relieve
confidentiality duty
from its
as to
firm
prior
argues
Freund also
we
subjects
deposition,
she
disclosed
Mills, who
as a
representation
appeared
deposition
not
that her
still could
be sure
an
prosecution
in his
witness
created
actually
with
coextensive
disclosures
precedent
conflict of interest. Our
actual
told”
firm.
“everything
had
that she
that an
not foreclose the conclusion
does
fact, despite having supposedly
ev
disclosed
under
be-
conflict was created
Smith
actual
response
firm in
erything she
told the
actually
the firm
learned confidential
cause
deposi
by
her
questions
Trent’s counsel at
representation Mills
during its
information
tion,
any of
Mills then
to answer
refused
repre-
relevant in the firm’s later
that was
ground
deposition questions on the
Duncan’s
of Freund.
sentation
firm had
prior
her
consultation
relationship.
attorney-client
at
Mills
with the law firm
established
consulted
When
fully
that she
regarding
suggests
This refusal
did
apartment
the cocaine
Trent’s
majority again
did
claims that Freund
that the
30. The
Because Freund has demonstrated
substantially
representation
hearing
develop
of him
firm's
little at the Rule 3.850
Trent,
prior representation
it is
to its
related
surrounding the
consulta-
facts
firm's
historical
necessary
argument
majority's
refute
28, supra,
Mills. mentioned in note
tion with
however,
As
did
the firm
not learn confidential informa-
that
tion
glean
appropriate to
these facts
it is
during
representation
its
that was
prosecutor
at the
developed
evidence
representation of
later
relevant
firm's
prior
hearing
court
record of
state
and from the
Nonetheless,
supra
See
note 3.
it seems
Freund.
majority ulti-
case. The
proceedings
Freund's
plain that the firm did learn relevant confidential
setting
mately
out
does use
sources
these
during
of Trent.
information
its
surrounding
consultation. Ante
facts
(discussing
supra part
the wealth
See
II.B.2.
IV.C.l.ii.
firm
potentially
information that the
detrimental
Trent).
representing
gained while
pursuing
particular
had told compromised by
de-
everything that she
disclose
McLain,
theory.
823 F.2d at
fense
infor
all of the confidential
firm—much less
where de-
(finding actual conflict
...
1463-64
learned
“actually
mation that
investiga-
was under criminal
[Mills],” fense counsel
representation of
during
[its]
delay
added)— tion
had incentive to
defendant’s
Smith,
(emphasis
at 1405
plea bargaining
hopes
trial and avoid
questions posed
answering the
Fulton,
himself);
delaying
against
indictment
Therefore,
information that the
counsel.
(“A
in which the
B. being made on a record that was taint- based supra part conflicts of interest. See. ed (noting consider that when we whether I.B. above Turning'to effect adverse strategy or tactic is an alternative defense performance repre- conflicts facts,” under the decisive “reasonable claims that two senting rely upon which we cannot be drawn “facts” arising obligations conflicts—the firm’s these the time from a record made after history representing Trent long tainted). partic- petitioner’s case became *45 against Foley and allegations and Trent’s ular, self- it is to credit Duncan’s difficult. may linked to the firm’s decision be Colton — serving post hoc at the Rule 3.850 statement strategy of forgo defense to the reasonable not he have hearing that he did think could personally claiming stabbed Walk- that Trent effectively impeached the witnesses based on majority’s Despite the efforts to death.33 er he saw at Trent’s trial. what otherwise, this claim is foreclos- prove to precedent. by our ed majority’s is that the problem A second credibility ignores argument the serious both that majority first a strate- The concludes principal witnesses problems of the State’s murder shifting the blame for Walker’s gy of significant competent, that and several facts two not meet the first elements to Trent did impli- have used counsel conflict-free could it was test adverse effect because of our for may the witnesses cate Trent. While State’s strategy plausible defense that changed their on cross-ex- not have stories the under facts. See United reasonable amination, by effective cross-examination (11th Carter, 721 v. F.2d States certainly could have dis- counsel conflict-free Cir.1984) Mers, (quoting United States sufficiently credited the witnesses Cir.1983)) (“Failure (11th F.2d disregard testimony as bi- jury would their strategy shifting blame well adopt Trent, by in favor of influenced ased interest, but actual give rise an conflict used on drugs that each witness and alcohol strategy have so must been to do murder, deliberately night realistically available to trial coun- option own to reduce their in an effort orchestrated sel.”). arguments support It offers two Freund, 117 prosecution. See chances First, argues that while conclusion. (listing the crimes with at n. 16 physical evidence all of State’s Mills, have Daniell could Angelilli, and which belonged or was murder either Walker surrounding charged for their conduct Trent, been all belonging to property on found death). addition, the facts that In Walker’s principal fact of the witnesses— three State’s impli- have used to counsel could conflict-free Mills, Angelilli, against and Daniell —testified beyond physical Trent went well cate predicted Duncan Freund. Because by majority. Coun- change mentioned their sto- evidence these witnesses would not con- have shown viewing them also could after sel ries on cross-examination transpired fact trolled events at Trent’s no witnesses murder, powerful had a that he night inno- Freund’s available to corroborate agreement II.B.2., plea for negotiating supra, a favorable As discussed obligations also to Trent constrained ethical ability Freund. strategy pursue the reasonable defense Walker, suborning perjury, lawyers his know- race-based motive to murder that he using testimony or ingly perjured false evi- lunged shot at Walker Walker with dence, knowingly making or false statements knife, history and that he had a of vio- Fla.Code of Professional Re- of fact. See lence, possession, diazepam and other crimi- 7-102(A) (1986). sponsibility DR Even if supra part II.B.2. nal See There- conduct. lawyers absolutely had been certain fore, defending strategy of that Freund —and Freund —had stabbed claiming Trent killed Walker cannot be however, Walker,36 these rules would not unreasonable based on the ma- dismissed as prevented putting them from the state jority’s argument.34 first proof by vigorously to its burden cross- majority argues that a defense examining by argu- witnesses and State’s shifting for strategy of the blame Walker’s ing jury closing the evidence Trent was unreasonable because murder presented at trial did not establish Freund’s Foley Freund admitted to and Duncan that beyond guilt vig- a reasonable doubt.37 This psy- admitted to his stabbed Walker and orous cross-examination could have extended chiatrist that he stabbed Walker because lawyers about even to matters which the result, told him to do it. As a either knew or believed that the witness was reasons, majority lawyers the firm’s could telling the truth. ABA Standards have been disbarred defended Freund 4-7.6(b) (3d Criminal Justice Standard ed. 1993) claiming (“Defense that Trent murdered Walker.35 knowledge counsel’s belief or certainly It is true that the ethics rules in telling that the witness is the truth does not cross-examination.”).38 prohibited preclude effect at trial closing, the time of Freund’s strategy merely lawyer’s 34. This defense was not a viable is not the role to determine a client's one; innocence, potential guilt it had be at least as effective and 'reasonable cause to be- insanily lawyers as an defense. Freund’s own guilty ethically lieve’ a client cannot affect a *46 insanity estimated that the was effective defense lawyer’s representation.”); Regu- see also Rules only thirty percent of the less. In addi- time or (1994) ("A lating lawyer the Fla. Bar 4-3.1 shall tion, prosecutor Foley a letter to the from reveals bring proceeding not or defend a ... unless there particular insanity that the firm felt that Freund’s doing is a basis for so that is not A frivolous.... potential only guilty defense had the a to lead to lawyer proceed- for the defendant in a criminal charge complete verdict aon lesser to relief —not ing may proceed- ... nevertheless so defend the Freund, liability. from criminal See 117 F.3d at ing require every as to that element of the case defense, blame-shifting 1581 n. 91. A on the established.’’); be ABA Center for Professional hand, other have could led to verdict of not Responsibility, Annotated Model Rules of Profes- guilty. (3d 1996) sional Conduct Rule 3.1 comment ed. ("[The exception proceed- in rule 3.1 for criminal majority's theory, Foley 35. Under the would have ings] principle reflects the constitutional that the subject discipline suggesting been to in his prove every state must element of the crime closing argument might that Trent have mur- not, charged by procedural rule or dered Walker and then told Freund that it was otherwise, shift its burden to the defendant.... Freund who did it. Accordingly, lawyer the criminal defense has the obligation government ethical to force the to upon lawyers 36. One basis which Freund’s could case.’’). prove its have disbelieved their client's confession was that jail Freund told a friend who visited him in addition, that he had not killed Walker. In some commentary helpfully 38.The to Standard 4-7.6 statement; symptoms of the by caused Freund’s brain dam- expands upon this age impaired were memory amenability to unquestionably many There are cases in which influence others. See 117 F.3d at provide defense counsel cannot the accused lawyers 1563-64. Even if the did believe precluded with a defense at all if counsel Walker, however, that Freund stabbed it certain- engaging vigorous from cross-examination ly possible that Freund was not the of witnesses either believed or known to have person murder, night who did so. On the of the truthfully. example, testified For where the lunged Trent had at Walker with his knife while guilt defendant has admitted to the yelling epithets. threats of death and racial plan testify, lawyer simply does not and the State’s witnesses at Freund’s trial also confirmed put proof intends to the state to its and raise a periodically that Trent was alone with Freund doubt, reasonable skillful cross-examination of and Walker in the room where Walker was prosecution’s witnesses is essential. In- stabbed in both the back and the chest. deed, circumstance were counsel this See, e.g., Yelardy, forgo vigorous prose- United States v. of the cross-examination (6th Cir.1978) J„ (Peck, ("It witnesses, dissenting) counsel would violate the cution's that, lawyer] pull argued [the failed to sure because lawyers then have Freund’s could his punches questioning [in former jury any from some “reasonable inferences client], support his current for the benefit of in the record”39 client evidence others.”). not Two prosecution pulling had estab- addi- claim that refrained from guilt beyond majority’s argument problems a reasonable lished Freund’s tional Therefore, been probative it would have entire- that negate any doubt. minimal value lawyers argue permissible might for Freund’s ly otherwise have. Duncan’s claim doubt existed closing reasonable First, majority’s argument falls under jury infer guilt could to Freund’s because weight one realizes that Trent its own once had killed that Trent from the evidence already pled second-degree guilty Walker. separate Freund’s trial be- murder before unconvincing argu- making After these lawyers, although still con- gan. Freund’s ments, ele- majority turns to the third insanity follow the defense that strained to con- effect and ment our test for adverse early represen- they publicly adopted link Freund did not establish a tends that tation, thus free at trial to abandon of the two actual conflicts either between insanity in favor of a defense pure defense not above and the firm’s decision mentioned implicated by argu- indirectly Trent40 — by claiming that to defend ing advantage took of Freund’s that Trent first As personally murdered Walker. kill mental state ordered Freund to conflict, argues the firm’s majority worry having to this Walker —without arising long history obligations from negatively affect Trent. Tell- defense would wide-rang- representing Trent did did this ingly, lawyers support in repre- made ing effect on the decisions it by offering any evidence that latter defense senting support argu- of this Freund. Im obligation confi- could have violated their ment, majority notes that the firm did dentiality arising lengthy repre- their indirectly in attempt implicate Trent supra part Trent. II.B.2. sentation of during Freund’s trial. murder Walker’s (noting the firm’s obligation limited discussing during por- the evidence While ability support argument that Freund closing argument tion control killed Walker while under Trent’s jury at Freund’s Duncan claimed procliv- presenting of Trent’s sexual evidence that Freund’s mental condition Trent knew *47 violence, diazepam pos- history of ities and susceptible that him to influence and left conduct). session, other criminal manipulated make him kill Trent Freund to claim could have re- Walker. Because this argu- majority’s the problem Another for in a criminal conviction sulted employs the artifice of “Mon- ment is that it joint ma- hypothetical in a the proven importing an day morning quarterbacking,” jority the decisions were believes that firm’s adverse “cure” into our test for element of by “allegiance to “colored” its Trent.” not by claim in suggesting that Duncan’s effect Ante 868. argument trial was closing at Freund’s firm did sufficient to demonstrate ar- problem majority’s An with the initial rep- pull against Trent while punches not its implication gument is that Duncan’s indirect resenting suggestion, This howev- Freund. very helpful trial is not of Trent at Freund’s er, any way in affect the conclusion does not answering question the. of whether the II.B., supra, firm—influ- part of may obligations to Trent be linked of inter- by ethically-based conflict enced forgo argument decision to the firm’s Freund’s beginning at the of est —elected directly personally that Trent murdered de- forgo the alternative case to reasonable insanity in favor defense. See Walker (“[W]e claiming per- Martinez, strategy at 363 cannot be fense 630 F.2d 4-7.7(a). duty representation Id. clear Standard of zealous owed client. possible de- 4- are the second third ABA Criminal Justice Standard 40. These Standards for II.B.2., (3d ed.1993). supra. strategies "commentary described fense 7.6 (or inherently If sonally murdered Walker. we were to was conflict with not under to) loyalties subsequent partial conclude that Duncan’s taken due the other or interests lawyer. supra reversal of this election was sufficient to re- of the client’s actual See note test, majority’s move initial taint that the firm’s conflict 6. The statement by of the contrast, imposed representation requires on its engage interest Freund to in “un indulging prohibit- guided speculation” we would be in order quantify inquiry prejudice.41 supra part degree ed into to which the actual I.B. received differed hypothetically that he could have received if conflict, majority As to the second represented by conflict-free counsel. Be argues that the firm’s actual conflict of inter- speculation prejudice, cause such smacks of allegations against arising est from Trent’s require 7; supra we must not it. See note Foley hearing and Colton at severance Strickland, 694, 104 see also 466 U.S. at S.Ct. did not motivate the firm’s initial decision to (noting prejudice at 2068 is established reject that Trent the defense murdered by showing “that proba there is a reasonable allegations Walker. that Trent’s Given that, bility but unprofessional counsel’s yet been made when the announced errors, the result proceeding defense, rely insanity that it would on an added)). (emphasis have been different” majority certainly may be correct.42 This conclusion, argument Applying proper reading does affect of our test for however, claim, allegations that Trent’s adverse effect to Freund’s it is undis- reinforced rely puted the firm’s initial decision to on an eliciting insani- that the tactic of that Trent Thus, ty supra part defense. See II.C. referred Mills to the firm was reasonable cannot actual might be said that this conflict under the facts pursued have been “played absolutely no ... lawyer. role counsel’s a conflict-free As to the link strategy.” Singletary, Buenoano v. between the firm’s conflict and its decision (11th added). Cir.1996) (emphasis information, not to elicit plain this it is asking tactic of Mills whether Trent re- very ferred her to the law firm that was cross-examining her at trial Freund also claims that the conflict of inherently in conflict with the firm’s continu- arising interest obligation from the firm’s ing obligation confidentiality to her. See confidentiality to Mills be linked to its supra part majority’s II.B.2. The claim that forgo decision to the reasonable alternative link no was established because Duncan’s defense tactic suggesting on cross-exami cross-examination of Mills was consistent pro-Trent nation that Mills had a bias insanity theory with the firm’s of defense is eliciting the fact that Trent referred Mills to simply sequitur. a non The fact that claim, rejecting the firm. majori effect of one of the firm’s conflicts of inter- ty states that our test for adverse effect *48 est —its failure to elicit certain information required that, Freund to show but the ultimately from Mills on previous professional cross-examination — relationship with happened to be consistent with the effect of Mills, the firm questioned would have Mills pur- another of its conflicts—its decision referring about Trent’s her to the law firm. insanity sue an probative defense' —is of noth- Ante at 869. This is an incorrect statement of ing. our test for adverse effect. All that be must shown under our test is that an alternative IV. strategy or tactic that was reasonable under might the pursued reasons, facts have been a foregoing For the we should va- lawyer, conflict-free but this alternative cate the district court’s denial of Freund’s 28 true, however, response apply allegations This would also claim 42. If Trent’s the Foley, by suggesting closing argument in his might anticipated very begin- from the jury may that Trent have committed the ning of its of Freund that Trent murder and then told Freund that it was Freund public would make these if the firm matters it, fully who did reversed the firm's initial elec- seriously harmed his interests. tion and removed the taint. beneficiary to benefit another right of one this case § and remand petition U.S.C. lawyers were bur- beneficiary. Freund’s instruction court with the to the district conflicts of interest irreconcilable dened corpus. of habeas grant writ it Freund a representation constitu- their that rendered tionally defective. dissenting: BIRCH, Judge, Circuit dis join Tjoflat’s Judge I well-reasoned majority opinion the A of both
sent. review highlight the Tjoflat’s response Judge designed to
difficulty rules interpreting must problems. Lawyers who
resolve ethical fre
analyze responsibility issues professional the law of
quently have chose between Thus, a general law. choice ethics and the CORPORATION, GAMING MIKOHN resolving that problem presented. is In Plaintiff-Appellee, ethical process, particularly where selection arise, approaches one of two concerns rules solve consists of be taken. Since law INC., GAMING, Defendant- ACRES analyze the rule problems, fortiori, one can Appellant. analyze problem to which the one the can 98-1216, 98-1217. differently, one is does Nos. rule directed. Stated apply apply rule as or does one written Appeals, United States Court purpose.* rule in accord with Federal Circuit. analyze-the-rule approach works when- jurisdiction, the rule’s but facts are within Dec. beyond the rule’s the facts are fails when How such deter jurisdiction. then should made?
mination be for determin-
I submit that workable test jurisdic- are
ing the facts within whether applica- is of a rule of ethics whether
tion rule creates dilemma for
tion Thus, problems professional re-
lawyer. jurisdiction rule’s tend within a
sponsibility ones; not within the problems simple be Ac- jurisdiction to be dilemmatic.
rule’s tend simple, problem
cordingly, when adequate; when
analyze-the-rule approach dilemmatic, analyze-the- problem is productive. most In the approach is
problem majority, wrong analysis by the
foregoing analysis pursued has been be-
approach to ap- analyze-the-rule emphasizes
cause the facts are outside of
proach where problem set jurisdiction. fact
rule’s *49 lawyers clearly dual in this case the
out respect clients. several
fiduciaries manifestly dilemmatic.
Their situation analysis con- Judge Tjoflat’s persuasive
As negate
cludes, fiduciary cannot a dual
* 1998). Patterson, Lawyer's Ray er Procedural Mal- Law: L. (Matthew Bend- Disciplinary Issues practice and does not notes is Rule committee us— hearing— prevent judge likely held the the state who the court will feel the need to less expand concerning pri- considering proceeding § facts the firm's in a ... record (or representation of Trent from three other sentencing) judge the one because the trial is prosecutor (see 4) that the elicited from hearing sources: facts and should al the motion Rule hearing, who testified at the facts of ready complete witnesses file on the case in his have a judge judicial took notice at the which hearing, state possession.”). appeared and facts that in the record of Recognizing prior proceed- that the record relating proceedings state court to Freund’s ings properly proceeding in a before court prosecution. pro- 3.850, The record of these murder ceedings motion under Rule Freund's Rule 3.850 part became of the record of the Rule quoted extensively from Trent’s at the hearing by operation of law. Fla. 3.850 hearing deposition and from Mills' tes- severance ("If P. the motion and the responding R.Crim. 3.850 timony prior to Freund’s trial. files conclusively motion, deposition records in the case show that the State attached Mills’ relief, prisoner entitled to no the motion shall transcript portion of Freund's trial and a added)). hearing.” (emphasis be denied without a During hearing ultimately as exhibits. motion, judge expressly statutory provision upon The federal which was held on Freund's motions, (1994). transcripts pleadings, § Rule 3.850 is based is 28 U.S.C. 2255 made the (Fla. prosecution part Bolyea, of the record. See State v. 520 So.2d from Freund’s 1988) ("Rule judicial nearly judge notice of the court 3.850 was taken word-for- also took 2255], aggravated diazepam plainly assault and word from and we files on Trent's [section hearing, given scope possession prosecutions. After the sev- the rule the same as federal broad Moreover, parties counterpart. explicitly were filed both we have rec eral memoranda ognized precedent interpreting the record of contained additional references to [section federal persuasive authority construing prior proceedings in case and to the as Rule 2255] (footnote omitted)). plain, prosecutions. It is 3.850.” and citation Like court files on Trent’s therefore, 3.850, requires this court also refer to these Rule section 2255 the trial court prior proceedings materials. consider record of II.B.2., trafficking important charge two described ably could be understood certainly Mills supra, learned that representa- later involved the firm’s issues a close friend of Trent and that to was If the law firm chose of Freund. tion jail through helping her to avoid time implicating in Walk- defend