conflict when attorneys rights the client's life story · over the client's objection^.^...

Conflict of Interests When Attorneys Acquire Rights to the Client's Life Story

When a defense attorney for a criminal defendant signs a retainer agreement which either proposes to pay the attorney through the marketing of the client's life story, or which gives the attorney contractual rights to the client's life story, a conflict of interests may arise. In essense, the attorney will be serving two masters: his own economic interest and the best interest of the client.' The two might require different treatment. For example, the attorney's stake in the literary or dramatic rights to the client's story may best be served by a sensational trial and great media coverage, while the client would best be served by the exact opposite.

Inherent within the problem of potential or real conflict is the constitutional question: did, or will, the client receive the constitutionally guaranteed right to effective co~nse l?~ For instance, is the infringement of this right by a presumed conflict of interests serious enough to warrant a new trial, or to justify the disqualification of the attorney before the actual trial is completed?

The appearance of impropriety is an equally important facet of the problem. The conflict may not actually exist, or it may not actually affect the attorney's performance. But the appearance of evil to the public may lessen the esteem of the judicial system. A belief by the public in the fair working of the judicial system is essential to proper functioning of such a system. Certainly the American Bar Association's Rules of Professional Conduct have paid attention to the appearance of misconduct as well as to spe- cific acts of misc~nduct.~ And while the client may consent to the arrangement with full knowledge of the potential or real conflict, the public at large cannot consent.'

1. People v. Corona, 80 Cal. App. 3d 684,720, 145 Cal. Rptr. 874, 915 (1978). 2. See Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama, 287

U.S. 45 (1932) (for a general discussion of the 6th Amendment's guarantee of effective counsel). See also Glasser v. United States, 315 U.S. 60 (1942).

3. See ABA, CODE OF PROFESSIONAL RESPONSIBILITY [hereinafter cited as ABA CODE], Canons 1 & 9.

4. ABA COMM. ON PROFESSIONAL ETHICS, OPINIONS, [hereinafter cited as ABA

300 The Journal of the Legal Profession

Is There A Conflict of Interests?

A retainer agreement by which the defense counsel in a murder prosecution was to be paid by assignment of all dramatic rights of the client's life story was found by a California court to be a serious enough conflict to jugtify disqualifying the attorneys, even over the client's objection^.^ The conflicts existing in the retainer agreement between Maxwell and his attorneys which concerned the California Court of Appeals in Maxwell v. Superior Court of Los Angeles were:

a. The Lawyers may have an interest to create publicity which would increase the money which they might get as a result of this agreement, even if this publicity hurt Maxwell's defense.

b. The Lawyers may have an interest not to raise certain defenses which would question the sanity or mental capacity of Maxwell because to raise these defenses might make this agreement between the Lawyers and Maxwell void or voidable by Maxwell.

c. The Lawyers may have an interest in having Maxwell convicted and even sentenced to death so that there would be increased publicity which might mean that the Lawyers would get more money as a result of this agreement.

d. The Lawyers may have other interests which are adverse to Maxwell's interests as a result of this agreementse

Maxwell himself stated to the court that he was fully informed and understood the potential conflicts, and he willingly and knowingly agreed, and decided not to seek advice from other attorneys. De- spite his protestations that he wanted his retained attorneys to represent him, the trial court's removal of Maxwell's attorneys was upheld.?

The nature of the conflict is stated in the ABA Code of Profes- sional Responsibility, which reads, in part:

OPINIONS] NO. 16 (1929) ruling that an attorney could not represent the defendant in a criminal case being prosecuted by another member of his firm, and conclud- ing that there could be no consent since the public is concerned and it can not consent.

5. Maxwell v. Superior Court of Los Angeles, 101 Cal. App. 3d 735, 161 Cal. Rptr. 849 (1980).

6. Id . at 825. 7. Id.

Rights to the Client's Life Story - -

A lawyer in a criminal case who obtains from his client televi- sion, radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the case may be influ- enced, consciously or unconsciously, to a course of conduct that will enhance the value of his publication rights to the prejudice of his ~ l i en t .~

Regardless of the view taken by the ABA Code of Professional Responsibility, federal courts have not always been swayed by the argument that such a conflict denies effective assistance of counsel. In Ray u. Rose,@ the Sixth Circuit held that Ray, the convicted assassin of Martin Luther King, Jr., had not been denied effective assistance of counsel because his attorney owned rights to a per- centage of Ray's story. Despite the potential conflict of interests, and "despite our disapproval of such a fee arrangement . . . , its existence does not necessarily mean that Ray was denied effective assistance of counsel."10

In a similar holding, the Second Circuit found a fee arrangement where the lawyer was paid from funds created by the sale of movie rights to the client's story "not worthy of emulation," but not constitutionally defective." The sale of movie rights in that case resulted in the movie "Dog Day Afternoon." In Patty Hearst's appeal from her sentence for armed bank robbery, a United States district court was unmoved by Hearst's claim that she was denied effective counsel because her defense attorney had entered into a contract for a book about her trial. Specifically, Hearst claimed that her attorney had demanded she take the stand to heighten publicity even though her repeated use of the Fifth Amendment would hurt her case.'"

The situation which the Maxwell court feared-an attorney's rights to the client's story with obvious detrimental results on the

8. ABA CODE, ETHICAL CONSIDERATIONS [hereinafter cited & EC] 5-4. See also ABA CODE, Disciplinary Rule [hereinafter cited as DR] 5-104(B) stating:

Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or under- standing with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.

9. 535 F.2d 966 (6th Cir. 1976). 10. Id. at 974. 11. Wojtowicz v. United States, 550 F.2d 786 (2d Cir. 1977). 12. United States v. Hearst, 466 F. Supp. 1068, 1083 (N.D. Cal. 1978).

The Journal of the Legal Profession .,

client-did result in a new trial for the defendant in People v. Co- rona.lS In that case the California Court of Appeals held that a conflict of interests was created which resulted in an "outrageous abrogation of the standards which the legal profession has set for itself and upon which clients have a right to rely, [and] also ren- dered the trial a farce and mockery calling for reversal of the con- viction and requiring a new trial.""

It is not always clear whether a conflict of interests does in- deed exist. Even when a court finds such a conflict, it is still not always apparent. For instance, in Maxwell, the client, Maxwell, ar- gued that his lawyers' reputation for excellence constituted a greater personal interest than the potentially higher fees that might result from the publicity of a death sentence.16 To the dissenting judge in Maxwell, it was unnecessary to find any conflict of interests in the arrangement, especially in view of the full disclosure by the attorneys and the affirmation by the attorneys to raise every defense which would be in Maxwell's best interest.16

The Constitutional Problem Involved in Conflict of Interests

The constitutional right to legal assistance in criminal cases includes the guarantee that such assistance be "effective."17 The Supreme Court has said: "The right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interest of his ~lients."~@Sosne c w f t have held tbat in order to find a denial of effective counsel in conflict of interests cases there must be an actual showing that the conflict resulted in prejudice to the client.lB However, in United States v. Hurt,a0 the

13. People v. Corona, 80 Cal. App. 3d 684, 720, 145 Cal. Rptr. 874, 915 (1978).

14. Id. at 727, 145 Cal. Rptr. at 920. 15. Maxwell v. Superior Court of Los Angeles, 101 Cal. App. 3d 735,161 Cal.

Rptr. 849 (1980). 16. Id. at 862 (dissenting opinion). 17. See Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama, 287

U.S. 45 (1932) (for a general discussion of the 6th Amendment's guarantee of effective counsel). See also Glasser v. United States, 315 U.S. 60 (1942).

18. Von Moltke v. Gillies, 332 U.S. 708, 725 (1948). See also Glasser v. United States, 315 U.S. 60 (1942).

19. See United States v. Mari, 526 F.2d 117 (2d Cir. 1975); United States v. Berriel, 371 F.2d 587 (6th Cir. 1967) cert. denied, 390 U.S. 907 (1968); United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966); Ford v. United States, 379 F.2d 123 (1967). But see United States ex rel. Hart v. Davenport, 478 F.2d 123 (1973)

Rights to the Client's Life Story 303

court said, "Competition between the client's interest and counsel's own interest plainly threatens" the quality of the attorneys' representation, and "we have no doubt that the conflict corrupts the relationship . . . The Hurt court rejected the notion that a showing of prejudice was necessary, and said that:

proof of prejudice may well be absent from the record precisely because counsel has been ineffective . . . . We believe, then, that we must heed the Supreme Court's admonition that "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."gP

In dealing with conflict of interests arising from the attorney's rights to the client's story, the courts have not been entirely consis- tent. The courts in Ray and Hearst held a showing of actual damage was required, and that an examination of the record and of the attorneys' representation showed both Ray and Hearst failed to meet that burden.2s In Wojtowicz u. United States, the Second Circuit, without requiring a showing of actual prejudice, said that the record showed counsel's advice was not outside the range of competence demanded of attorneys in criminal ca~es.~' In People u. Corona, the California Court of Appeals recognized that a deter- mination of effective counsel is always "a question of judgment and degree to be answered in light of all the circumstances and with a view to fundamental fairness . . . The defendant, charged with the brutal murder of twenty-five migrant workers, had a substantial history of aggravated psychosis, but his counsel never raised an insanity defense. As a result of that failure, plus other behavior, such as seeking publicity adverse to his client's interest, the court held:

The record before us, including the transcript of the eviden- tiary hearing . . . shows as a demonstrable reality that trial

(requiring only a showing of a possible conflict of interests or prejudice however remote).

20. 543 F.2d 162, 166 (D.C. Cir. 1976). 21. Id. at 166. 22. Id. at 168 (quoting Glasser v. United States, 315 U.S. 60 (1942). 23. Ray v. Rose, 535 F.2d 966 (6th Cir. 1976); United States v. Hearst, 466 F.

Supp. 1068, 1083 (N.D. Cal. 1978). 24. 550 F.2d 786, 792 (2d Cir. 1977). 25. 80 Cal. App. 3d 684, 705, 145 Cal. Rptr. 894, 905 (1978).


counsel, in gross neglect of his basic duty, failed to conduct the requisite factual and legal investigation in an effort to develop fundamental defenses available for his client and as a result of his neglect, crucial defenses were withdrawn from the case.36

Thus, as a practical matter, despite differences in the language of the standards used, the courts looked a t actual damage to clients in the conflict of interests situation before determining if a constitutional violation occurred. In Maxwell, however, the trial court removed the attorneys before the potential conflict could result in actual ineffective repesentation of Maxwell's interest. Hence, Maxwell raised a question not presented in the after-the- fact situations of Ray, Hearst, Corona, and Wojtowicz: may a court remove counsel privately retained by a criminal defendant, even when defendant is aware of the potential conflict of interests, and still desires to be represented by that attorney?

Maxwell contended that the court's removal of the attorneys of his choice violated his constitutional right to representation by counsel of his choice and interfered with the right of attorneys to make fair financial arrangements with clients who are indigent.g7 The court countered this argument by stating:

The interest of the courts and the public in a fair trial and in the integrity of the judicial process take precedence over a criminal defendant's right to retain counsel of his own choice exercised though an agreement to compensate counsel by an award of publication rights to the story of defendant's life, including the criminal trial.a8

The court must concern itself with the rights of the public as well as the rights of the prosecution and the defendant.3B Such concern has been voiced before in federal courts.s0 The Maxwell court relied on Comden v. Superior Courts1 in which the California Court

26. Id. at 706, 145 Cal. Rptr. at 906. 27. Maxwell v. Superior Court of Los Angeles 101 Cal. App. 3d 735, 161 Cal.

Rptr. 849, 853 (1980). 28. Id. at 855. 29. Id. at 858. 30. See Renshaw v. Ravert, 460 F. Supp. 1089,1094 (E.D. Pa. 1978) (holding

plaintiffs right to choice of attorney secondary to maintaining highest standards of professional conduct and scrupulous administration of justice). But see Board of Educ. v. Nyquist, 590 F.2d 1241 (2d Cir. 1978) (holding appearance of impropriety too slender a reed on which to rest a disqualification).

31. 20 Cal. App. 3d 906, 145 Cal. Rptr. 9, 576 P.2d 971 (1978).


of Appeals sustained the trial judge's action in disqualifying attorneys for a party upon motion of the opponent because a member of the firm was likely to testify at the trial. The Comden court said:

However, 'ultimately the issue involved a conflict between a client's right to counsel of his choice and the need to maintain ethical standards of professional responsibility. "The preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar is paramount. . . . [The client's important right to counsel of his own choice] must yield, however, to considerations of ethics which run to the very integrity of our judicial process."g2

The Maxwell court concluded that the right of a defendant in a criminal case to be represented by counsel of his choice is not absolute, and should not be placed above the "preservation of judicial in teg r i t~ . "~~

Impact of the ABA Code

In Maxwell, the California Court of Appeals relied in upon Rule 5-101 of the California Rules of Professional Conduct which provides:

A member of the State Bar shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless [I] the transaction and terms in which the member of the State Bar acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in manner and terms which should have reasonably been understood by the client . . . . M

O Although passing reference was made to the ABA Code, the court's reliance was primarily upon the California Rules. The court held, despite the waiver by Maxwell after the lawyers gave him a full written disclosure, that the arrangement was not fair and reasonable within the requirements of Rule 5-101 of the California Rules.35

32. Id. at 915, 145 Cal. Rptr. at 13, 576 P.2d at 975. See also People v. Supe- rior Court, 19 Cal. 3rd 255, 561 P.2d 1164 (1977).

33. Maxwell v. Superior Court of Los Angeles, 101 Cal.App. 3d 735, 161 Cal. Rptr. 849, 853 (1980).

34. See ABA CODE, DR 5-104(A). 35. See Jeffry v. Pounds, 67 Cal. App. 3d 6, 9, 136 Cal. Rptr. 373 (1977);

Kraus v. Davis, 6 Cal. App. 3d 484, 490, 85 Cal. Rptr. 846,-, (1970) for other


The Corona court cited DR 5-104(B) of the ABA Code, and said, "[tlhe record as a whole abundantly demonstrates that the conflict of interests . . . proscribed by the canons of ethics resulted in obvious prejudice to appellant . . . ."Be There was no mention in Wojtowicz of any reference or reliance on the ABA Code. In Hearst, the court said, "The ABA Code of Professional Responsi- bility renders such conduct, where proven, the object of disciplinary proceedings. Id., DR 5-104(B). This is properly so, . . . . Dis- tasteful as the practice may be, however, it is not the case that the mere existence of a publication rights contract renders the representation constitutionally defi~ient."~' The Ray court also took no- tice of the ABA Code, and pointed out that while the contract was a violation of DR 5-104(B), the ABA Code was adopted after Ray entered his plea.

With the exception of the Wojtowicz court, the cases involving the contractual rights to a client's life story discussed in this paper have recognized the existence of the ABA Code's prohibition against the practice. Such recognition was not sufficient to render a judgment in appellant's favor in Hearst, but was apparently an important consideration in Maxwell. Again, as with the question of whether there was effective counsel, it seems court reliance upon the ABA Code differs both with the circumstances and with the

The real question of whether an arrangement between an attorney and his client in which the attorney acquires the rights to the client's story actually results in a conflict of interests may be unanswerable in the abstract. I t appears to depend upon the client, the attorney, and the circumstances. The ABA Code says that such 0

an arrangement does create a conflict, consciously or unconsciously. The Maxwell court agreed. Yet, the dissenting judge in Maxwell wrote: "I reject the premise that any attorney who has the opportunity to profit by betraying his client is likely to do

cases judicially recognizing the significance of Business and Professional Codes. 36. People v. Corona, 80 Cal. App. 3d 684, 720, 145 Cal. Rptr. 874, 915

(1978). 37. United States v. Hearst, 466 F. Supp. 1068, 1083 (N.D. Cal. 1978). 38. See United States v. McCord, 507 F.2d 334, 352 (1974) (n. 64, indicating

that the ABA CODE may be considered in disqualifying attorneys).


SO."^@ Maxwell himself claimed that the temptation to the attorneys which was created by the arrangement was more than offset by the attorneys' interest and stake in their reputations as law- ye r~ . '~ Furthermore, as the dissenting justice pointed out, many types of conflicts are common in fee arrangements.

An attorney who received a flat fee in advance would have a "conflicting interest" to dispose of the case as quickly as possible, to the client's disadvantage; and an attorney employed at a daily or hourly rate would have a "conflicting interest" to drag the case on beyond the point of maximum benefit to the client . . . . The variants of this kind of conflict are infinite. Fortu- nately, most attorneys serve their clients honorably, despite the opportunity to profit by neglecting or betraying the client's interest."

Even as Caesar's wife was admonished to avoid even the appearance of evil, so lawyers are admonished to assist in maintaining the integrity and competence of the legal profession and to avoid even the appearance of professional impr~priety.'~ Implicit within the admonition to avoid the appearance of evil is the notion that the public has a large stake in the matter, and that for a judicial system to work, the public must believe in it. Attorneys must be keenly tuned to standards which seek to maintain the integrity and administration of justice. Thus, a t the bottom line, lawyers should scrupulously avoid acquiring contractual rights to the client's life story because there is both the possibility of actual impropriety and the appearance of impropriety.

Claire Hamner

39. Maxwell v. Superior Court of Los Angeles, 101 Cal. App. 3d 735, 164 Cal. Rptr. 849, 861 (1980) (dissenting opinion).

40. Id. at 855. 41. Id. at 862. 42. See ABA CODE, Canons 1 & 9.

conflict when attorneys rights the client's life story · over the client's objection^.^...

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