Friday, August 14, 2020

An Actual Conflict Of Interest

The Maryland Court of Appeals has held that a defense attorney's conflict of interest entitled a petitioner to post-conviction relief. 

From the court's headnote

In this case, where defense counsel is personally involved in litigation, and a witness to that proceeding is also the arresting officer in counsel’s client’s unrelated criminal case, a conflict of interest exists. Under Cuyler v. Sullivan, 446 U.S. 335 (1980), an actual conflict of interest that adversely affects the representation is presumptively prejudicial. In Taylor v. State, 428 Md. 386 (2012), we adopted the three-prong test from Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), to determine when a conflict of interest satisfies the Sullivan rule. To satisfy the Mickens test, a petitioner must prove: (1) that there was a plausible alternative defense strategy that defense counsel might have pursued; (2) which was objectively reasonable under the facts of the case known to defense counsel; and (3) that defense counsel’s failure to pursue the strategy was linked to the conflict of interest. As a matter of first impression, the Court holds that to determine when a link exists under the third prong of Mickens, a petitioner must demonstrate that the alternative defense strategy was inherently in conflict with counsel’s other loyalties or interests or that the alternative defense was forgone due to those other loyalties or interests. The Court holds that Petitioner satisfied his burden under Mickens and demonstrated that his defense counsel labored under an actual conflict of interest that adversely affected the representation.

The conflict

Three cases form the foundation of the petition for post-conviction relief. Two are interrelated criminal cases stemming from a traffic stop of Petitioner and a subsequent search of his girlfriend’s residence. The third is a civil suit against Petitioner’s defense counsel that was related to a divorce proceeding involving the police officer who initiated the traffic stop.

The divorce case

Deputy Ensor and his then-wife, Ms. Ensor, divorced in 2012. Mr. Discavage jointly represented the Ensors in their divorce proceedings and handled their settlement agreement. Ms. Ensor filed a lawsuit against Mr. Discavage in March 2015 for negligence, breach of fiduciary duty, intentional misrepresentation, and negligent misrepresentation related to Mr. Discavage’s handling of their divorce. The complaint alleged that Mr. Discavage favored Deputy Ensor in the divorce proceedings by understating Deputy Ensor’s income or failing to verify his income. Ms. Ensor sought approximately $75,000 in damages.

This was not disclosed to the defendant but came to light post-conviction.

In describing the nature of the relationship, Mr. Discavage explained that he represented Deputy Ensor in a divorce case several years prior to his representation of Petitioner. Although the divorce was finalized, “there was still potential litigation with the parties to that case” at the time Petitioner hired Mr. Discavage.

The post-conviction court granted relief

Based on the foregoing, the post-conviction court found that an actual conflict of interest existed. The court emphasized that the ongoing relationship between Mr. Discavage and Deputy Ensor formed the foundation of the conflict of interest: Deputy Ensor was subpoenaed to produce documents and give a deposition in the civil suit and likely would have been a fact witness. The court found that “during the time Mr. Discavage was representing Petitioner, Mr. Discavage was engaged in litigation where maintaining a positive [rapport] with Deputy Ensor was in Mr. Discavage’s best interest.” The court further found that because of that conflict, Mr. Discavage did not inform Petitioner about his connection to Deputy Ensor, nor did he present Petitioner with the opportunity to waive the conflict.


In an unreported opinion, the Court of Special Appeals reversed the decision of the post-conviction court and held that the conflict of interest was merely potential, not actual.

The court here found an actual conflict

A conflict of interest arises when counsel is embroiled as a defendant in on-going litigation and one of the witnesses in that litigation is also the arresting officer in an unrelated criminal case involving counsel’s client. This Court has repeatedly made clear that ineffective assistance of counsel claims are not exclusive to conflicts of interest stemming from the representation of multiple clients...

Ms. Ensor’s civil suit alleging that Mr. Discavage favored Deputy Ensor in their divorce commenced in March 2015. Mr. Discavage noted his appearance in the traffic stop case—in which Deputy Ensor was the arresting officer—in circuit court in May 2015 following a jury trial prayer. Petitioner entered his conditional plea in the traffic stop case in November 2015, and his global plea in the search warrant case in January 2016. Ms. Ensor’s civil suit against Mr. Discavage did not end until March 2016. Mr. Discavage never informed Petitioner about the civil suit and Deputy Ensor’s involvement as a witness in it even though the civil suit and criminal cases occurred simultaneously.


If Mr. Discavage’s relationship with Deputy Ensor had been grounded exclusively in the 2012 divorce proceedings, no conflict of interest rising to the level of ineffective assistance of counsel would likely exist. Mr. Discavage labored under a conflict of interest not because of his successive representation of Deputy Ensor followed by Petitioner, but because of the concurrent nature of Ms. Ensor’s civil suit and Petitioner’s criminal cases—both of which significantly involved Deputy Ensor. Mr. Discavage had a personal stake in the outcome of the civil suit, and as such, had his loyalties divided between himself and Petitioner...

In juxtaposition, Deputy Ensor would likely have been a fact witness in the civil case, the very subject of which related to the allegation that Mr. Discavage improperly favored Deputy Ensor in his divorce from Ms. Ensor. Mr. Discavage would undoubtedly be better served by a friendly witness—one who was at the center of the controversy—than one that is hostile or ornery. In the criminal cases, Mr. Discavage would impugn Deputy Ensor; in the civil case, Mr. Discavage would rely on Deputy Ensor to absolve Mr. Discavage of wrongdoing. Maintaining a positive rapport with Deputy Ensor for the sake of a positive outcome in the civil case was inherently in conflict with cross-examining Deputy Ensor in Petitioner’s criminal cases.

(Mike Frisch)

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