Tuesday, February 11, 2014
Keith Swisher (Phoenix School of Law) has posted Disqualifying Defense Counsel: The Curse of the Sixth Amendment (St. Mary's Journal on Legal Malpractice & Ethics, Vol. 4, 2014, Forthcoming) on SSRN. Here is the abstract:
Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify. This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to other litigants, criminal defendants generally have weaker, not stronger, rights to ethical representation; and (2) that disqualification law in criminal practice generally weakens, not strengthens, defendants’ representation.