Disqualifying Defense Counsel: The Curse of the Sixth Amendment

Abstract

Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify. This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to civil litigants and even prosecutors, criminal defendants generally have weaker, not stronger, rights to counsel and to ethical representation; and (2) that the way forward is judicial respect for rich — and poor — defendants’ rights to continuity and discontinuity of counsel.

Keywords: Attorney Disqualification, Lawyer Disqualification in Criminal Practice, Prosecutorial Disqualification, Sixth Amendment, Gideon, Conflict of Interest, Strategic Motion to Disqualify, Screening, Concurrent Client Conflicts, Former Client Conflicts, Joint Representation, Rules of Professional Conduct