In Mickens v. Taylor (2002), Walter Mickens Jr. was convicted and sentenced to death for the 1992 murder of Timothy Hall. Mickens’ court-appointed lead attorney, Bryan Saunders, had been representing the victim, Hall, on criminal charges at the time of the murder. Saunders had not disclosed this fact to Mickens or the court, and the conflict only came to light during federal habeas corpus proceedings when a clerk mistakenly gave Hall’s file to Mickens’ new counsel.

Amazingly, in a 5–4 decision, the U.S. Supreme Court held that for a Sixth Amendment violation (ineffective assistance of counsel) to occur, the defendant must prove that the conflict adversely affected the attorney’s performance. The majority rejected the argument that such a conflict should lead to an automatic reversal. Because Mickens could not prove the lawyer’s performance was negatively affected by his previous representation of the victim, his conviction and death sentence stood. 

I don’t like the decision at all. That conflict requires mandatory withdrawal unless the client is informed of it and consents. Yet the SCOTUS ruling holds that the client, whose right to zealous representation was jeopardized by the conflict, has to prove the conflict interfered with his lawyer’s judgment. Saunders argued that he barely knew his dead client. What if Hall was an asshole? What if he smelled bad? So what? The client had a right to know that his alleged victim was known to, indeed employed by his lawyer.

It happened again a few years later, in the capital murder for hire case against local drug dealer Ricky Kelly and his co-defendant, Dion Neal in a Louisville, Kentucky case. Louisville lawyer Keith Kamenish represented Neal on charges stemming from the murder of LaJuante “B.B.” Jackson, whom Kamenish was representing at the time of the killing. Indeed, Kamenish’s bloodstained business card was found on Jackson’s body.

The main issue in this controversy was whether Kamanish had learned any confidences from the victim, which he would be prevented from using if they would help his current client, the accused murderer. A lawyer’s duty to protect confidences survives the client’s death. In a death penalty case, which this was, an attorney may have to attack the victim’s reputation and conduct to reduce the jury’s sympathy for him and try to spare the defendant’s life. Will the lawyer be less aggressive out of loyalty or affection for the deceased? Will the lawyer use the former client’s confidences as a part of the defense, or avoid doing so, even when it might help the client’s case?

These issues were present in the Lincoln Lawyer’s case as well, but he had his client sign a conflict waiver as if it settled the matter. It doesn’t. Rule 1.7 (b) states in part,

 “A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”

The client’s waiver isn’t enough: the Rule states that the conflicted lawyer must also “reasonably believe” that the he or she can competently and diligently represent such a client. I don’t believe that it can ever be reasonable to believe that if the client turns out to be guilty, which is always a possibility.

In my view, Mickey’s is an unwaivable conflict, though I have to add that lawyers are very frequently allowed to get a client’s waiver as if that alone is sufficient.