Friday, February 19, 2021

Appointer's Remorse

The United States Court of Appeals for the District of Columbia Circuit found that it had appointed conflicted counsel and remanded a habeas case for further proceedings with unconflicted representation

the appointment of Mary Davis by the district court to represent Scurry when she labored under an undeniable and significant conflict of interest was an improper exercise of the appointment power under the Criminal Justice Act and, therefore, legal error. A “significant conflict of interest” arises when an attorney’s “interest in avoiding damage to [her] own reputation” is “at odds with [her client’s] strongest argument.” Maples v. Thomas, 565 U.S. 266, 285–286 n.8 (2012). That is this case exactly. Mary Davis’s conflict of interest pitted her professional interests and reputation against her client’s legal interest in the advancement of his only viable challenge to the guilty plea—one based on the Davises’ own alleged ineffectiveness in advising him to take the plea and in setting its terms. This plain and material conflict of interest made the appointment of Mary Davis for the Section 2255 petition and appeal legal error because we “certainly cannot reasonably expect an attorney to vigorously attack [her] own prior representation of a client as ineffective.” United States v. Barnes, 662 F.2d 777, 782 (D.C. Cir. 1980); see also Massaro v. United States, 538 U.S. 500, 502–503 (2003) (noting that “an attorney who handles both trial and appeal is unlikely to raise an ineffective assistance claim against himself”).

To be fair, that legal error is as much this court’s as the district court’s because we appointed Mary Davis to handle this appeal.

(Mike Frisch)

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