[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

counsel for the same crime, or when counsel might be called as a prosecution witness. 23
When the error is raised during a court proceeding, disqualification can be sought. 24
In Holloway v. Arkansas, 25 the Supreme Court held that the failure of a trial judge to
inquire into a multiple concurrent representation conflict was enough to presume
prejudice. 26 In most situations, however, prejudice is not presumed, and defendants must
show “actual” conflicts of interest that compelled defense counsel to compromise his or her
duty of loyalty. 27 Courts have restricted this actual conflict category to a small list of
flagrant conflicts, such as implication of the lawyer in the defendants’ crime, 28
representation of co-defendants, 29 and direction from the trial judge to counsel to pull his
punches if he wishes his fee approved and future appointments from the court. 30 For the
defendant who can demonstrate that an actual conflict existed, he or she need prove only
that it “adversely affected” the lawyer’s performance at trial instead of the usual but-for
prejudice requirement.
The Bounds of the Law
Reversing Convictions Although frequent allegations of ineffective assistance of counsel in
criminal appeals show no sign of abating, very few defendants succeed in overturning
convictions. 31 Part of this is because over 90 percent of criminal convictions result from a
guilty plea, where far less scrutiny of counsel’s performance is usually possible and, even
when it is, courts have been especially reluctant to reverse convictions. Due to the difficulty
of satisfying both prongs of the Strickland test, very few convictions are reversed for trial
error as well.
Yet despite these hurdles, state and federal cases have recognized constitutional error in
several categories of failings by defense counsel. 32 Most obvious is the lawyer who
abandoned his client by failing to inform him that the lawyer no longer represented the
client in an appeal. 33 When counsel is present, but fails to test the prosecution’s case, such
as by conceding the defendant’s guilt to the jury when the defendant consistently
maintained his innocence, 34 or by a total lack of effort and explanation, 35 courts have no
trouble finding a violation. Following a fact-specific inquiry, courts also have found counsel
ineffective for failing to adequately investigate facts, 36 failing to find or understand relevant
law, 37 and giving defective advice about whether to testify or accept a plea bargain. 38
Malpractice Convicted defendants also can bring a legal malpractice action against their
former lawyers. 39 Yet courts have created some special doctrines that make malpractice
recovery against criminal defense lawyers very difficult to secure. In such a suit, the
defendant would first be confronted with the defense of governmental immunity. Although
the courts agree that publicly employed lawyers such as prosecutors should be protected
from suit by governmental immunity, 40 they generally do not grant such immunity to
appointed counsel 41 and are split about whether public defenders share similar immunity. 42
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