Friday, December 21, 2007

Barry Bonds Waiving His Attorneys' Conflict of Interest?: Reporting and Reality

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?

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Here's a link to a D.C. ethics opinion that touches on the issues raised by Alan's post:

Posted by: Mike Frisch | Dec 22, 2007 7:37:50 AM


Very interesting post.

I confess that I see it differently, in that this one seems easily consentable to me. Arguedas's former clients aren't even in the picture. Ruby's former client, Dr. Ting, is at best a marginal witness who might not even be called and whose testimony Bonds doesn't need to refute. Moreover, isn't it the case that, if need be, Arguedas or Rains could cross Ting, if that ever became necessary? Ruby, by the way, brings to the table a reputation for formidable skills and high ethics. (Disclaimer: Ruby and I are in the same Inn of Court.) I think that Judge Illston made the right call here when she ruled that the conflict has been cleared by waiver.

On your second point about whether or not Bonds has forever waived the conflict point, my sense is that you are correct it's not 100% waived. On the other hand, for most practical purposes Bonds has now "made his bed" on this issue. FWIW, I think Bonds made the right choice. He's got some great talent lined up.

Posted by: John Steele | Dec 22, 2007 11:41:26 AM

Thanks for that. I knew you'd be more up on the actual facts of the prosecution than I would be, and give more relevant scoop than the press reports were giving. As you see it, then, the other client has no interest really adverse to Bonds, and would only be called out of some strategic sense by the prosecutor to manufacture this conflict, much like the AUSA did in Wheat. Then on the stand he would say innocuous stuff that would hardly need to be cross-examined by Ruby. So it is waivable, assuming the former client is OK with that. (I still have not seen it reported that the doctor has waived it--I still would not if I were the doctor, at least to be further dragged into this, and here because my patient wanted to keep my old atty that would cause the media to always link us up).

OK, then, but from the east coast vantage point I have and the fewer facts and background, I imagined lots of ways that the government could try to make use of the doctor and put Ruby in the difficult position of testing the credibility of a former client, assuming he is clearly now a former client (I still don't see reported why the doctor would not consider Ruby his atty in ongoing matters related to Bonds's alleged drug use and patient relationship with the doctor). I mean, as I understand it, the doctor accompanied Bonds to a privately arranged drug test and may have been the one to draw his blood. The test turned up positive and had been arranged by BALCO or at least its point was to see if the BALCO versions were working test-free, I take it. Does not the doctor then have some information that a prosecutor can at least try to pry out of him? Just what did the doctor think the purpose of the testing was?

I may be paranoid, but to me it is easy to see how this can blow up in Ruby's face. I don't assume a loyalty from everyone associated with Bonds the way his trainer has been. I can see any of these associates having testimony harmful to Bonds. This is his private doctor and he did not notice any biological changes to Bonds around 1999-2002 that would lead to suspicions about steroids? And just on the chain of custody of the blood test, isn't the defense already giving up a claim that the blood taken was not his, or that BB is someone else? Would not the doctor taking the blood have evidence on that?

As I say, I would be the first to concede that people closer to this, including the judge, may already know how all these answers line up in such a way that there is no real risk of cross to the doctor. I just don't see that. The speculative cross in Wheat which was found enough to DQ counsel (which the atty Iredale swore would just be "I never knew the D and never heard of him") is much more attenuated than the ongoing medical relationship between Bonds and a doctor involved in the very drug test that proves, says the prosecutor, that Bonds lied to the grand jury. At least I know the doctor cannot just say "I never met the defendant and never heard of him."

Posted by: Alan Childress | Dec 22, 2007 4:06:09 PM


Your comment makes me realize that my first comment didn't address the important issue of Dr. Ting's take on all this. I am now curious as to what position, if any, Ting took on the waiver or how Bonds dealt with that issue. Now I'd like to get my hands on the moving papers.

One possibility, and it's only speculation, is that (1) the Bonds defense team believes there is no basis for, or benefit from, attacking Ting; (2) Ting (a big name in local sports medicine who benefits from association with big name sports players) would be loathe to deprive Bonds of counsel of choice; and (3) to the extent anyone needs to cross Ting, it can be ably handed by Arguedas. If that's true, it's possible that Ting either supported Bonds or chose not to intervene on the issue of the waiver. Do you have access to the moving papers?

Posted by: John Steele | Dec 23, 2007 9:09:12 AM

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