Friday, December 21, 2007
Posted by Alan Childress
I'm borrowing a page from Jeff's recent and great post last week on the media's misuse of the term "hearsay" when describing the Mitchell Report's finding of Roger Clemens's use of steroids. He exploded how the WSJ Law Blog, ESPN, and others routinely but wrongly described the evidence against Clemens as mere hearsay. If they meant that Clemens never got a chance to cross-examine his accusers, then they were in the ballpark of the issue -- but they seemed to present it as a purely technical term and in that sense were technically wrong.
Even in that policy sense, though, of "confronting one's accuser," I assume that Clemens had an opportunity to participate voluntarily in the investigation and declined (since it is widely reported that only Giambi and someone else less famous did participate). But it is clear that John Kruk does not quite get the whole "truth of the matter asserted" idea, which would not make him all that different from lots of lawyers and judges I have observed. Anyway, ESPN is wrong. Inexplicably, Jeff did not somehow assert that the Detroit Tigers do understand Rule 801(c), or point out how fun it would be to interview dual-expert Tony La Russa, Esq., about the hearsay implications of steroid accusations.
News stories yesterday (like this AP one on ESPN's site) were making dramatic pronouncements regarding the conflicts-of-interest waiver that Barry Bonds is offering the judge in order to keep his choice of lawyers. But I do not see anything particularly dramatic or hand-wringing about this. The judge should routinely grant the prosecutor's motion to disqualify counsel. That denial of "counsel of choice" should be routinely affirmed on appeal, if any, as not an abuse of discretion, a la Wheat v. United States. The risks of continuing representation in Wheat itself were controversially speculative, and many criticize the opinion as straining too hard to see a conflict in the situation presented. Even so, the judge's discretion to DQ counsel overrode the defendant's preference of counsel.
By contrast, on the facts reported about the Bonds representation, the conflicts "risks" inherent in going forward are not speculative or ephemeral. As I understand it, one of the attorneys will have to cross-examine his other (former?) client on a central issue in the case: private testing of Bonds which came back positive. That is nothing like the tepid cross-examination forecast in Wheat. This one could be a mauling. Or it would not be a mauling, to the detriment of his current client Bonds. To my mind, there is no way this is a waivable conflict, and this judge will predictably grant the motion to DQ. So I am puzzled by reports that the judge "seems inclined" to let Bonds keep his attorneys (maybe so with the one who just represented a track athlete, but the one representing Bonds's doctor?).
Another thing missing in these stories, at least the ones I have read, is whether there has been a waiver given by the former client for the successive conflict on a substantially related matter (here, the same matter). I would not give one if I were he. In fact, I would intervene. Without his waiver, I do not see how Bonds's willingness to waive a conflict really matters. Lots of current clients are willing to waive the conflict of a successive representation, but it is the former client that we should be worried about first and foremost. Bonds cannot waive it for him. I know there is a concurrent issue too in the current Bonds representation, and that is what the stories focus on, but they seem to forget the more looming successive conflict.
Unless the former client really has waived it. And even then, this might be one of the few situations of lingering loyalty in which a successive conflict should be found to be non-waivable. It is just wrong to skewer your former client on cross on the same matter, and possibly expose him to more legal process and public shame. Even if he is somehow OK with it.
I teach that successive conflicts are almost always waivable (the casebook says so), but I don't really believe it in extreme cases like this. Then if there is no skewering, we are back to the concurrent problem of kid-gloving the former client when Bonds may need him to be skewered. And that would be the negative effect on the current representation that forms the essential conflict now--one that is ongoing and cannot be waived by Bonds, even if the former client is somehow not directly adverse. (He is more readily materially adverse for purposes of the successive conflict above.)
Even if the two matters were unrelated, two ABA ethics opinions say that an attorney can only rarely wind up in a situation in which she needs to cross-examine a former client. Here, the matters are related at the core, and the cross-examination is inevitable and central to Bonds's defense. So this judge ought to grant the motion, and the media hand-wringing about "choice of counsel" to follow will miss the point that this hypo is too easy to be assigned as an ethics exam.
Unless I am missing something. I don't think I am, but I invite Mike or anyone to tell me why the motion to DQ is more interesting and debatable than I have made it. The reported inclination to deny the motion may be based on some nuance of the case I am not seeing--like somehow the doctor's testimony is inherently favorable to Bonds.
Finally, some stories report (such as AP) that if Bonds gets to keep his counsel, the issue will be waived for appeal. I think they mean that it will not be immediately appealable. That is technically true, though this is the kind of situation in which mandamus may make its mark and allow review before trial (maybe not, from a prosecutor's writ). I am pretty sure that once the matter is ultimately appealed, it would be reviewable, though under a tough standard asking whether there was an actual conflict that actually affected the performance. This would be like Cuyler v. Sullivan, and again I would think there'd be ample evidence of an effect on the representation to satisfy the test (just as there was on remand in Cuyler, where the attorney admitted he softballed the cross of his other client). So I do not agree with the various quotes of "legal experts" to the effect that Bonds has waived the issue for appeal. The AP story says bluntly: "By waiving conflict-of-interest issues, Bonds is precluded from appealing any conviction because of the lawyer's previous representation." That is not correct, is it? Is there some reason Cuyler would not apply to this waiver, to help out a defendant who should not have waived? In the Ninth Circuit?