Amicus Curiae Brief — Dennis Spencer, Petitioner v. Colorado

No. 21-1157

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DENNIS SPENCER,

Petitioner,

v.

COLORADO,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Colorado Court Of Appeals

---------------------------------♦--------------------------------AMICUS BRIEF OF LEGAL ETHICS SCHOLARS

AND LAW PROFESSORS

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------RAFFI MELKONIAN

Counsel of Record

WRIGHT CLOSE & BARGER, LLP

One Riverway, Suite 2200

Houston, Texas 77056

Telephone: 713-572-4321

melkonian@wrightclosebarger.com

March 24, 2022

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

4

I.

II.

III.

Counsel’s loyalty to their client has always

been paramount when defending a criminal case ......................................................

4

A. The duty of loyalty is the lawyer’s

central obligation ................................

4

B. The duty of loyalty has even greater

bite in the context of a criminal case ....

8

There is no reason to cabin Sullivan to

just one type of conflict of interest ............

9

Leaving the decision below undisturbed

hurts clients and the public’s trust in the

legal system ............................................... 11

CONCLUSION..................................................... 13

ii

TABLE OF AUTHORITIES

Page

CASES

Burdett v. Miller,

957 F.2d 1375 (7th Cir. 1992) ....................................5

Castillo v. Estelle,

504 F.2d 1243 (5th Cir. 1974) ..................................10

Cuyler v. Sullivan,

446 U.S. 335 (1980) ......................................... passim

Glasser v. U.S.,

315 U.S. 60 (1942) ...................................................10

Holloway v. Arkansas,

435 U.S. 475 (1978) ...................................................8

Nix v. Whiteside,

475 U.S. 157 (1986) ...................................................9

Padilla v. Kentucky,

559 U.S. 356 (2010) ...................................................8

Snyder v. Com. of Mass,

291 U.S. 97 (1934) ...................................................10

Stockton v. Ford,

52 U.S. 232 (1851) .....................................................5

Strickland v. Washington,

466 U.S. 668 (1984) ............................................... 2, 5

Swidler & Berlin v. United States,

524 U.S. 399 (1998) ...................................................9

Tumey v. State of Ohio,

273 U.S. 510 (1927) .................................................10

Wood v. Georgia,

450 U.S. 261 (1981) ...................................................8

iii

TABLE OF AUTHORITIES—Continued

Page

STATUTES

MODEL CODE OF PROFESSIONAL RESPONSIBILITY,

Canon 7 (1969) ..........................................................6

MODEL CODE OF PROFESSIONAL RESPONSIBILITY

DR 5-101(A), 5-105(A) (1983)....................................7

MODEL RULES OF PROFESSIONAL CONDUCT

R. 1.7(b) .....................................................................7

OTHER AUTHORITIES

ABA,

Formal Ethics Opinion 04-432 (2004) ......................7

Abbe Smith,

Burdening the Least of Us:

“Race-Conscious” Ethics in Criminal Law,

77 Tex. L. Rev. 1585 (1999) .......................................8

Audrey I. Benison,

The sophisticated client: A proposal for

the reconciliation of conflicts of interest

standards for attorneys and accountants,

13 Geo. J. of Legal Ethics 699 (2000) ......................11

CANONS OF PROFESSIONAL ETHICS, Canon 15

(1908) .........................................................................6

David Luban,

Fiduciary Legal Ethics, Zeal, and Moral

Activism, 33 Geo. J. Legal Ethics 275 (2020) ...........3

Deborah L. Rhode,

Ethical Perspectives on Legal Practice,

37 Stan. L. Rev. 589 (1985) .......................................8

iv

TABLE OF AUTHORITIES—Continued

Page

Fred C. Zacharias,

Integrity Ethics, 22 Geo. J. of Legal Ethics

541 (2009) ................................................................12

Lawrence Fox,

The Gang of Thirty-Three:

Taking the Wrecking Ball to Client Loyalty,

121 Yale L.J. Online 567 (2012) ................................5

Monroe H. Freedman,

Religion is not totally irrelevant to Legal Ethics,

66 Fordham L. Rev. 1299 (1998) .............................12

Monroe H. Freedman & Abbe Smith,

UNDERSTANDING LAWYERS’ ETHICS

(4TH ED. 2010) ...........................................................6

Monroe H. Freedman & Abbe Smith,

UNDERSTANDING LAWYERS’ ETHICS

(5TH ED. 2016) ...........................................................2

Monroe H. Freedman, Abbe Smith & Alice Woolley,

LAWYERS’ ETHICS

(1ST ED. 2017) ............................................................2

Restatement (Third) of Law Governing Lawyers

§ 121 (American Law Institute 1999).......................7

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INTEREST OF AMICI CURIAE1

Amici curiae are professors and legal ethicists at

law schools throughout the United States. They

teach, write, or practice in the field of legal ethics and

professional responsibility for attorneys. They have a

professional interest in the clear, consistent, and fair

application of rules in ethics and professional responsibility—their interest is at its height in criminal

law cases, where an attorney’s strict adherence to

norms of professional responsibility is crucial to the

administration of justice.

Amici submit this brief to emphasize two overarching points. First, Amici write to emphasize the

centrality of the duty of loyalty to a lawyer’s defense of

a client. This duty is at its height in criminal cases,

where the defendant is on trial for his liberty and

where the consequences are potentially so severe.

Second, Amici write to note that the principles of

legal ethics do not limit the reach of the duty of loyalty

to co-defendant situations like the court below held. To

the contrary, legal ethicists generally see no important

distinction between the representation of multiple clients found to be problematic in Cuyler v. Sullivan, 446

U.S. 335 (1980) and cases involving other kinds of conflicts that place the lawyer’s loyalty in question. In

No counsel for any party has authored this brief in whole

or in part, and no person other than the amici or their counsel

have made any monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to

the filing of this amicus brief. All parties were given 10 days

notice of the filing of brief.

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each of those cases, as the Petition argues, the rule

should be that prejudice is presumed when counsel actively represented conflicting interests and that an actual conflict of interest “adversely affected the lawyer’s

performance.” Strickland v. Washington, 466 U.S. 668,

692 (1984).

Under those foundational legal ethics rules, and

this Court’s own decisions, the problem posed in this

case and other cases involving conflicts present exactly the same difficulties as Sullivan presented.

Amici believe leaving the rule the court below announced untouched would harm the fair and impartial

administration of justice in the adversarial system,

and therefore urge this Court’s review.

Abbe Smith is the Scott A. Ginsburg Professor of

Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman

Fellowship Program at Georgetown University. She is

the author or editor of Lawyers’ Ethics (with Monroe

H. Freedman & Alice Woolley, 2017) and Understanding Lawyers’ Ethics (with Monroe H. Freedman, 5th

ed., 2016).

Tiffany R. Wright directs the Human and Civil

Rights Clinic at Howard University School of Law as

part of a Racial Justice Fellowship sponsored by Orrick, Herrington, & Sutcliffe LLP.

Ellen Yaroshefsky is the Howard Lichtenstein Professor of Legal Ethics and Director of the Monroe

Freedman Institute for the Study of Legal Ethics at

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the Maurice A. Deane School of Law at Hofstra University.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Petitioner Dennis Spencer’s counsel in this case

stated that he could not properly defend Spencer

against allegations of child sexual assault because of

his own emotions after becoming a father. Counsel

later explained that he felt he was in a no-win situation. If Spencer were guilty, he was being forced to

represent an individual who sexually assaulted a

child—now extremely difficult for counsel because of

the change in his life circumstances. If Spencer were

innocent, then he was forced to believe “there’s something with the accuser that’s not right.” Pet. App. at 9a

(quoting Pet. App. at 119a). Together, these feelings

made Counsel sure he could not be an “effective” or

“zealous” advocate for “Mr. Spencer in his cases.” Pet.

App. at 65a.

This is exactly the kind of conflict in the duty of

loyalty that a lawyer cannot and should not proceed

with. Under the Model Rules, if he could not “go all the

way in” with his representation, then he must withdraw. David Luban, Fiduciary Legal Ethics, Zeal, and

Moral Activism, 33 Geo. J. Legal Ethics 275, 287

(2020). But the district court forced counsel to continue

representing Spencer. The results were predictable.

Although one can never know in the cold light of day

every single decision that was influenced by counsel’s

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lack of zeal, the record shows several times when counsel who did not feel a conflict would have acted more

vigorously.

Despite this clear conflict of interest, the court below held that this Court’s long-standing rule in Cuyler

v. Sullivan, 446 U.S. 335, 346 (1980)—which recognized the centrality of an attorney’s undivided loyalty—did not extend beyond co-defendant situations.

That result is flatly inconsistent with the rules of legal

ethics, rules which form the basis of this Court’s Sixth

Amendment jurisprudence. Amici, a group of legal

ethicists and scholars, write to explain to the Court

that the wall the court below erected between one

kind of conflict of interest and all the others cannot

withstand serious scrutiny. This Court should grant

certiorari in this case and resolve the important split

presented.

---------------------------------♦---------------------------------

ARGUMENT

I.

Counsel’s loyalty to their client has always

been paramount when defending a criminal case.

A. The duty of loyalty is the lawyer’s central obligation.

This Court has recognized for more than a century

that lawyers owe their clients the highest duty of loyalty. Constitutionally effective assistance of counsel

“entails certain basic duties” to the client, including a

“duty of loyalty” and a corresponding “duty to avoid

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conflicts of interest.” Strickland, 466 at 688. The duty

of loyalty is the most fundamental of all fiduciary duties the legal profession owes to its clients. See, e.g., id.,

466 U.S. at 692 (describing the duty of loyalty as “perhaps the most basic of counsel’s duties”).

The lawyer’s duty of loyalty stands perhaps alone

in its intensity among other legally recognized duties.

“Few” business relations of life, the Court noted, are

“more anxiously guarded by the law, or governed by

sterner principles of morality and justice.” Stockton v.

Ford, 52 U.S. 232, 248 (1851). This duty requires the

lawyer as agent to treat “his principal with the utmost . . . loyalty and good faith—in fact to treat the

principal as well as the agent would treat himself.”

Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992)

(emphasis added).

This is because the relationship between the lawyer and the client is one of total client dependence: the

lawyer has all the knowledge of both the law and the

justice system. This special position of dependence

and trust makes breaches of the duty of loyalty substantively different than other kinds of ethical

breaches. A breach of loyalty “can blunt a lawyer’s advocacy, undermine a lawyer’s independent professional judgment, inhibit a lawyer’s creativity, and

compromise a lawyer’s zeal.” Lawrence Fox, The Gang

of Thirty-Three: Taking the Wrecking Ball to Client

Loyalty, 121 Yale L.J. Online 567 at 571 (2012),

http://www.yalelawjournal.org/forum/the-gang-of-thirtythree-taking-the-wrecking-ball-to-client-loyalty.

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This duty of loyalty—so central to the lawyer’s

task—is not limited by norms of professional responsibility to some narrow category of conflict. From the beginning of legal ethics lawyers have been exhorted to

put aside their interests or the interests of others in

favor of that of their client. Lord Henry Brougham’s

exhortation that the lawyer must “not regard the

alarm, the torments, the destructions which he may

bring upon others” is typical of how the duty of zeal

and loyalty is expressed. See 2 CAUSES CELEBRES: TRIAL

OF QUEEN CAROLINE (1874). Lawyers are to defend their

clients—no matter the consequences to society, to the

opposing party, or even to the lawyer’s own sense of

ethics. The proper solution to the lawyer’s “moral objections” (whether as to tactics or to the case itself ) is

“not for the lawyer to take the case and then to deny

the client his rights” but to “refuse to take the case.”

Monroe H. Freedman & Abbe Smith, UNDERSTANDING

LAWYERS’ ETHICS (4TH ED. 2010).

When the first formal ethics codes were adopted in

the United States, much the same language was used.

The 1908 ABA ethics code demanded that lawyers owe

“entire devotion to the interest of the client. . . .” CANONS OF PROFESSIONAL ETHICS, Canon 15 (1908) (emphasis added). The second ABA code from 1969 emphasizes

to lawyers that their duty is to “seek any lawful objective through legally permissible means.” MODEL CODE

OF PROFESSIONAL RESPONSIBILITY, Canon 7 (1969).2

2

See generally, Luban, Zeal, at 287.

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Modern ethics codes follow the same path. The

Model Rules of Professional Conduct, for example,

speaks of a conflict of interest existing where the representation clashes with a “personal interest of the

lawyer.” MODEL RULES OF PROFESSIONAL CONDUCT R.

1.7(b). The Model Code of Professional Responsibility

discusses the lawyer’s “own financial, business, property, or personal” and “differing interests.” MODEL CODE

OF PROFESSIONAL RESPONSIBILITY DR 5-101(A), 5-105(A)

(1983) (Model Code). And the Restatement refers to a

“lawyer’s own interests” or “the lawyer’s duties to another current client, a former client, or a third person.”

Restatement (Third) of Law Governing Lawyers § 121

(American Law Institute 1999).

Consistent with that text, legal ethics boards

around the United States have concluded that lawyers

face impermissible conflicts in situations that go far

beyond co-defendant situations. ABA Formal Ethics

Opinion 04-432 (2004) (concluding that posting bail

for a client implicates a conflict of interest); D.C. Legal

Ethics Opinion 354 (2010) (significant financial obligations to client could create conflict of interest); Wisconsin Formal Ethics Opinion EF-19-01 (concluding that

job negotiations with opposing party can cause conflict). These decisions are not outliers, but in the mainstream of legal ethics interpretations.

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B. The duty of loyalty has even greater bite

in the context of a criminal case.

The duty of loyalty has special bite in criminal

cases, where the client’s resources are often extremely

limited, and the consequences they are facing especially high. See generally Abbe Smith, Burdening the

Least of Us: “Race-Conscious” Ethics in Criminal Law,

77 Tex. L. Rev. 1585, 1585-86 (1999) (describing the

unique burdens of criminal defense in terms of legal

ethics). See also Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589, 605 (1985)

(recognizing that “the case for undiluted partisanship

is most compelling” in criminal defense). The “unique

stigma” of conviction demands the highest degree of

loyalty and zeal. See Schwartz, The Zeal of the Civil

Advocate, in THE GOOD LAWYER (D. Luban ed. 1984).

Precisely because of the high importance of criminal defense, this Court has also long recognized that

prevailing “norms of practice as reflected in the American Bar Association and the like . . . are guides to determining what is reasonable.” Padilla v. Kentucky, 559

U.S. 356, 366 (2010). Particularly in the context of evaluating conflicts of interest, this Court has regularly

looked to prevailing norms of practice and professional

responsibility. See, e.g., Wood v. Georgia, 450 U.S. 261,

270-271 & n.17 (1981); Holloway v. Arkansas, 435 U.S.

475, 485-486 & n.8 (1978).

Although “breach of an ethical standard does not

necessarily make out a denial of the Sixth Amendment

guarantee of assistance of counsel,” canons of ethics

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and professional codes carry significant if not dispositive weight when “virtually all of the sources speak

with one voice.” Nix v. Whiteside, 475 U.S. 157, 165166 (1986). Thus, for example, this Court relied on

principles of legal ethics to hold that the attorneyclient privilege “continues after death,” Swidler &

Berlin v. United States, 524 U.S. 399, 406-407 (1998),

and was led by those standards to evaluate counsel’s

response to a client who will perjure himself on the

stand, Nix, 475 U.S. at 165-166. And Justice Marshall

“adopted” the American Bar Association’s definition of

“Conflict of Interests” in Sullivan, 446 U.S. at 346.

The bottom line is that the duty of loyalty is a

central aspect of a proper understanding of the Sixth

Amendment right to counsel. And under wellestablished legal ethics rules, the duty of loyalty is

wide and all-encompassing. A lawyer is required to

provide his or her client with the strongest and most

zealous representation, no matter the facts.

II.

There is no reason to cabin Sullivan to just

one type of conflict of interest.

The court below held, consistent with some other

courts around the United States, that the rule of

Sullivan applies only to co-defendant situations.

Thus, Sullivan does not apply “when the conflict of

interest claims allege a conflict between counsel’s personal interests and the interests of his or her client.”

Pet. App. 5a-6a. Rather, Sullivan governs only Sixth

10

Amendment claims involving “conflict arising from

multiple representation.” Id.

This conclusion is incorrect, as a matter of this

Court’s own precedents, as the Petition argues, but also

because the logic of Sullivan should apply with equal

force to other conflict of interest cases.

Perhaps the most important reason this is true is

the question of proper review. One of the animating

reasons for the Sullivan rule is that figuring out the

prejudice where there is a failure of the duty of loyalty

is extraordinarily difficult. As this Court has emphasized, the “right to have the assistance of counsel is too

fundamental and absolute” to allow courts to indulge

in “nice calculations” as to the amount of prejudice

arising from its denial. Glasser v. U.S., 315 U.S. 60, 76

(1942). See also Snyder v. Com. of Mass, 291 U.S. 97,

116 (1934) (“True, indeed, it is that constitutional privileges or immunities may be conferred so explicitly as

to leave no room for an inquiry whether prejudice to a

defendant has been wrought through their denial”);

Tumey v. State of Ohio, 273 U.S. 510, 535 (1927) (“No

matter what the evidence was against him, he had the

right to have an impartial judge”). Or, as one Court of

Appeals has noted, a “cold record” cannot be expected

to disclose the “erosion of zeal which may ensue from

divided loyalty.” Castillo v. Estelle, 504 F.2d 1243, 1245

(5th Cir. 1974).

The facts of this case neatly illustrate the problem.

As the Petition explains, Counsel admitted that he

could not be an “effective” or “zealous” advocate for Mr.

11

Spencer in his cases. And as the Petition lays out, even

the cold record shows counsel made several decisions

that are suspect, including his decision to agree to consolidate Spencer’s case with others, his failure to crossexamine Spencer’s niece about a letter expressing remorse for lodging the allegations, Pet. App. 20a-21a,

and his decision not to interview Spencer’s daughter

about her testimony. Can we know to any certainty

that counsel’s attitude led the jury to convict? Of

course not—not even counsel may know in truth what

he would have done. But the risk that they did is exactly what the legal ethics rules are meant to prevent.

III. Leaving the decision below undisturbed

hurts clients and the public’s trust in the

legal system.

This Court should step in to correct the decision

below and to protect prevailing ethics norms. Most important, making sure Sullivan covers all conflicts of

interest in criminal cases protects public trust in both

the justice system and in the legal profession. Indeed,

one reason given by the drafters for the 1908 ABA canons was to create a “system for establishing and dispensing Justice” such that “the public shall have

absolute confidence in the integrity and impartiality

of its administration.” 1908 Canons, pmbl. See also

Audrey I. Benison, The sophisticated client: A proposal

for the reconciliation of conflicts of interest standards

for attorneys and accountants, 13 Geo. J. of Legal Ethics 699, 711 (2000) (observing that failing to impose

prophylactic rules on conflicts is “so detrimental to the

12

truth-seeking process that it is better to err on the side

of prohibition”).

If it can be true that a criminal defendant cannot

receive relief—even after his lawyer publicly stated

they cannot represent the client with zeal and there

was some positive proof that the representation was

harmed—then the public will no longer believe that

lawyers are completely dedicated to representing

them. “If a lawyer chooses to represent a client . . . it

would be immoral as well as unprofessional . . . to deprive the client of lawful rights that the client elects

to pursue after appropriate counseling.” Monroe H.

Freedman, Religion is not totally irrelevant to Legal

Ethics, 66 Fordham L. Rev. 1299, 1304 (1998). That immorality and unprofessionalism cannot be the basis for

a properly functioning criminal defense system.

Second, the rule announced below creates incentives for lawyers not to report their moral qualms and

other serious conflicts. Fred C. Zacharias, Integrity

Ethics, 22 Geo. J. of Legal Ethics 541, 553 (2009) (noting that “ethics codes” create rules in part to “provide

incentives . . . to motivate lawyers to honor the demands of the legal system and . . . enable lawyers to

justify their special conduct to clients and the outside

world”). If by reporting the lawyer exposes themselves

to ethical scrutiny, but will do their client no good, then

of course it is less likely that counsel will report their

misgivings. Similarly, by lowering the standard for reversal, Sullivan incentivizes judges and prosecutors to

accommodate a defense attorney who raises objections

to their representation, because the risk of overturning

13

the conviction would increase. These incentives are additional reasons why Sullivan must be understood to

cover all conflict scenarios.

---------------------------------♦---------------------------------

CONCLUSION

This Court should reverse and remand this case.

Respectfully submitted,

RAFFI MELKONIAN

Counsel of Record

WRIGHT CLOSE & BARGER, LLP

One Riverway, Suite 2200

Houston, Texas 77056

Telephone: 713-572-4321

Facsimile: 713-572-4320

melkonian@wrightclosebarger.com

Dated: March 24, 2022