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<strong>Justice</strong> Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel Model Rules preclude representation of multiple parties by a single attorney whenever the interests of clients are “directly adverse” or there is a “significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” 93 As the comment to the rule explains, “[t]he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.” 94 Similarly, the Supreme Court’s decisions have underscored the need for each defendant to have his or her own lawyer as a means of securing for each defendant conflictfree representation, thereby providing “effective assistance of counsel” as guaranteed by the Sixth Amendment. 95 Consequently, the number of lawyers needed for indigent clients and the expense of indigent defense services nationwide is considerably greater than it would be otherwise. Neither rules of professional conduct nor standards governing the conduct of defense lawyers discussed in the preceding section address the myriad of ways in which indigent defense representation in criminal and juvenile cases has become increasingly complex during the past several decades. In 2007, the American Council of Chief Defenders (ACCD) issued a statement that outlines how over the years legal developments and procedural changes have made indigent defense much more difficult, placing on defense lawyers far greater time demands and requiring a higher level of expertise. 96 As the ACCD explains, defense attorneys now have to deal with “entire new practice areas, including sexually violent offender commitment proceedings, and persistent offender (‘three strikes’) cases which carry the possibility of life imprisonment.” 97 Further, the statement discusses the increased complexity of juvenile defense work, the importance of defenders understanding the collateral consequences of convictions, and the specialized knowledge needed by defense lawyers who provide representation in capital cases. 98 Also, defense lawyers must be alert Professional Conduct, R 1.10 (e). Compare Ethics Advisory Opinion 78-02 (South Carolina Bar Ethics Advisory Comm. 1978) (a public defender office is the same as a law firm for conflict of interest issues). 93 ABA Model Rules, supra note 67, at R.1.7(a) (1),(2) (2007). 94 ABA Model Rules, supra note 67, R.1.7 cmt. 23 (2007). 95 See Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser v. United States, 315 U.S. 60 (1942). See also ABA Defense Function, supra note 73, at 4-3.5(c). 96 American Council of Chief Defenders Statement on Caseloads and Workloads, August 24, 2007 [hereinafter ACCD Statement on Caseloads and Workloads], available at http://www.nlada.org/DMS/ Documents/1189179200.71/EDITEDFINALVERSIONACCDCASELOADSTATEMENTsept6. pdf. The American Council of Chief Defenders (ACCD) is comprised of heads of defender programs from all over the country. ACCD is a unit of the National Legal Aid and Defender Association. 97 Id. at 7. 98 Id. at 7–9. 38 | The Constitution Project
Chapter 1—The Right to Counsel to numerous rules related to procedural default, pursuant to which defendants can forfeit the opportunity to litigate in state and federal appellate courts absent timely objection in the trial court. 99 D. Ineffective Assistance of Counsel: The Difficulty of Correcting Mistakes The Supreme Court has long held that the “the right to counsel is the right to the effective assistance of counsel.” 100 In the case of Strickland v. Washington, 101 decided by an 8–1 majority in 1984, the Supreme Court held that, to successfully claim ineffectiveness, a defendant must establish that the facts of the case satisfy a two-pronged test. 102 First, counsel’s performance must have been deficient, meaning that “counsel’s representation fell below an objective standard of reasonableness.” 103 Specific guidelines to determine whether an attorney meets an objective standard of reasonableness were rejected, but instead “the proper measure remains reasonableness under prevailing professional norms.” 104 However, in evaluating a claim of ineffectiveness, a court “must be highly deferential” 105 to defense counsel and “indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.” 106 99 See, e.g., McQuinn v. Commonwealth, 20 Va. App. 753, 460 S.E.2d 624 (en banc) (1995) (motion to strike evidence is waived for appeal if not renewed at the close of all evidence); Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093 (1990) (defendant who objects to a trial court ruling on voir dire of the jury must also object to the seating of the juror to preserve objection for appeal). For procedural default and its application to the death penalty, see Larry W. Yackle, The American Bar Association and Federal Habeas Corpus, 61 Law & Contemp. Probs. 171 (1998). 100 McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). 101 Strickland v. Washington, 466 U.S. 668 (1984). 102 While the focus of this section is on the two-prong test for determining ineffective assistance of counsel, a defendant is also denied the effective assistance of counsel when the state “interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.” Id. at 686. See infra note 124 for cases cited by the Supreme Court. 103 Strickland, 466 U.S. at 688. 104 Id. The Supreme Court further elaborated on this point by stating that “prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal <strong>Justice</strong> 4-1.1 to 4-8.6 (2nd ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides.” Id. 105 Id. at 689. 106 Id. The Constitution Project | 39
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Justice DenieD AmericA’s continui
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Page 13 and 14: Preface The National Right to Couns
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APPenDices The Constitution Project
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Lavallee v. Justices in Hampden Sup
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Appendix C: State Statutes Establis
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