UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
March 8, 1976
UNITED STATES OF AMERICA
GREGORY HURT, APPELLANT REHEARING DENIED APRIL 22, 1976.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Robinson and Robb, Circuit Judges and Matthews,* United States Senior District Judge for the United States District Court of the District of Columbia. Opinion for the Court filed by Circuit Judge Robinson.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
This case presents uniquely a claim of ineffective assistance of counsel in proceedings on a remand which we ordered for investigation of an earlier claim of ineffective assistance of counsel at a criminal trial. Our careful review of the record convinces us that the representation provided for the remand proceedings did not meet constitutional standards. Accordingly, we must remand once again. I
Following appellant's conviction on three counts of robbery, *fn1 we appointed new counsel to represent him on appeal. Counsel briefed and orally argued several grounds for reversal, including ineffective aid by his trial counsel, *fn2 a position first advanced in an affidavit which appellant presented to the District Court after notice of the appeal had been filed. Lacking a record upon which that contention could be measured, *fn3 we remanded to the District Court for appropriate proceedings, *fn4 holding the appeal in abeyance pending further order. *fn5 It was our expectation that appellant would be represented on remand by the attorney appointed as his counsel on appeal.
It so happened, however, that shortly after oral argument on the appeal, trial counsel brought a $2 million libel suit against appellate counsel, a development of which we were unaware when we remanded. The libel allegedly was appellate counsel's argument in his brief on appeal that trial counsel had not effectively served appellant prior to conviction. When, following our remand, the issue of ineffective assistance came on for hearing in the District Court, the libel action was still pending. *fn6
At the outset of the hearing, appellate counsel, accompanied by his own attorney, asked to be excused as appellant's lawyer on the basis of a conflict of interest. *fn7 He explained that, because of the libel suit, he feared that his presentation of facts asserted in appellant's affidavit would be considered a second publication of defamatory matter, and thus would aggravate his situation. He also argued that unless leave to withdraw was granted, appellant himself was apt to be prejudiced. As counsel expressed it, "I . . . feel that I am inhibited from defending or representing [appellant] on this remand proceeding for the simple reason that I have a personal interest in this matter which may not be at all times and in every respect co-extensive and equal to his."
The District Court rebuffed counsel's plea, suggesting that whatever might be said during the hearing would be totally privileged. This view was unsatisfactory to counsel, but the court soon brought further protestations to an end. The court stated that appellate counsel need not participate in the proceeding, *fn8 and that the court itself would cross-examine trial counsel on the basis of the allegations of appellant's affidavit.
With that the hearing commenced, but yet another shadow soon crept over the proceeding. After reading appellant's affidavit into the record, the court called upon the Government to proceed. Following direct examination of trial counsel, the Government argued that appellate counsel should conduct the cross-examination, surmising that the legal interests of appellant and appellate counsel were coextensive -- that aggravation of the alleged defamation could be pressed more forcefully if only counsel retreated from the charge of ineffective representation. Counsel again objected, citing the ethical canon that a lawyer remain free of interests tending to conflict with those of his client. *fn9 The court paid no heed and, despite having previously excused appellate counsel from active participation in the hearing, directed him under the threat of contempt *fn10 to cross-examine trial counsel.
In this milieu, appellate counsel resumed his function as appellant's attorney and the hearing moved forward to completion. On the basis of testimony by trial counsel, the prosecutor and appellant, the court made a series of findings which led it to hold that appellant had been competently assisted at his trial. The case then came back to this court and the parties filed supplemental memoranda addressing the adequacy of the representation on remand as well as that at trial. Since we conclude that appellant did not receive his constitutional due at the remand hearing, we do not at this stage of the litigation reach the question whether trial counsel's performance passes muster. II
Among the protections afforded by the Sixth Amendment is the guaranty that "in all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence." *fn11 It is settled that "the right to counsel is the right to the effective assistance of counsel" *fn12 -- meaning "the reasonably competent assistance of an attorney acting as his diligent conscientious advocate" *fn13 and that this right obtains at all "'critical' stages of [criminal] proceedings". *fn14 It is equally clear, particularly in view of their nature and potential complexity, *fn15 that the proceedings on remand were of that character. *fn16 The threshold question is whether appellant's representation by appellate counsel on remand, in the circumstances described, measured up to constitutional standards. Only when the issue as to the adequacy of trial counsel's performance is probed by counsel competently representing appellant can we address that issue on appeal.
Long ago, the Supreme Court instructed that "the right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client," *fn17 an admonition which we ourselves have had occasion to observe. *fn18 "Undivided allegiance and faithful, devoted service to a client," the Court declared, "are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision." *fn19 The crucial question confronting us is whether appellant had that quality of service at the hearing on remand.
To be sure, most conflicts of interest seen in criminal litigation arise out of a lawyer's dual representation of co-defendants, *fn20 but the constitutional principle is not narrowly confined to instances of that type. The cases reflect the sensitivity of the judiciary to an obligation to apply the principle whenever counsel is so situated that the caliber of his services may be substantially diluted. *fn21 Competition between the client's interests and counsel's own interests plainly threatens that result, and we have no doubt that the conflict corrupts the relationship when counsel's duty to his client calls for a course of action which concern for himself suggests that he avoid. *fn22
That, we think, was the case here. Trial counsel sued appellate counsel for libel, seeking $2 million as damages. The theory of the suit was the presentation in this court, on allegedly false and irrelevant facts, of appellant's claim that trial counsel's performance was constitutionally inadequate. The suit was still pending when appellate counsel was summoned to undertake proof of that claim at the hearing on remand. Therefore, while his client's interest plainly lay in hammering away toward that objective, self-interest in not worsening his own position tugged strongly in the opposite direction. We are unable to distinguish his situation from the more familiar instance in which regard for the client's well-being clashes fatally with the lawyer's proprietary interests. *fn23
We are mindful that appellate counsel actually had little or nothing to fear from continued representation of appellant on the evidentiary inquiry into the quality of the service which trial counsel had rendered. In communications during the course and as a part of a judicial proceeding in which an attorney participates as counsel, he is protected by an absolute privilege to publish false and defamatory matter of another so long as it has some relation to the proceeding. *fn24 The privilege immunizes the attorney from liability for defamation despite the purpose underlying its publication, and notwithstanding belief or even knowledge as to its falsity. *fn25 And while the communication, to trigger the privilege, must have some relation to the proceeding, it need not be relevant in the legal sense; it suffices that it has "enough appearance of connection with the case . . . so that a reasonable man might think [it] relevant." *fn26 For, as we have explained, "the doctrine of absolute immunity for statements in judicial proceedings reflects a judgment that the need for completely free speech for litigants is dominant, and that this freedom is not to be endangered by subjecting parties to the burden of defending their motives in subsequent [defamatory] litigation, or to the risk that juries may misapprehend those motives." *fn27
Here, however, the record demonstrates that these considerations were set for naught by appellate counsel's seemingly unalterable attitude toward the lawsuit in which he was personally involved. The inevitable though tiny risk of a defamation suit from professional activities in a judicial proceeding had materialized. The chance that the suit might be lost, though small, had not abated. *fn28 The stakes, measured by the gravity of defamation of professional character, were high. That these personal concerns loomed large to counsel is manifest from their assertion over and over again as grounds for leave to retire from appellant's representation, and from his strenuous efforts -- three in all -- to free himself from the ordeal. *fn29 There is no reason whatever to doubt counsel's sincerity; *fn30 and however counsel's apprehensions might appear to a disinterested observer, the record indulges only the conclusion that to counsel they were very real.
We think, then, that the District Court erred in conducting the hearing without appointing another lawyer for appellant. The first essential element of effective assistance of counsel is counsel able and willing to advocate fearlessly and effectively, *fn31 and the libel suit generated far too great a dilemma for appellate counsel to permit him that range of action. Obviously, neither the court *fn32 nor the attorney for appellate counsel *fn33 was at liberty to assume the role of advocate for appellant. And we perceive no basis upon which it might be held that appellant waived his constitutional entitlement to competent representation. *fn34
Nor are we able to say that appellant was not prejudiced. The Government points out that appellant does not suggest in retrospect anything that appellate counsel intended to undertake at the hearing that he did not feel free to do. This attempt to minimize the problem ignores the incontrovertible fact that appellate counsel was adamantly opposed to doing anything at all, and that he proceeded only because the court ordered him to do so and threatened to hold him in contempt if he refused. We have recognized that "proof of prejudice may well be absent from the record precisely because counsel has been ineffective";35 we recognize, too, that lawyers frequently do not realize their own shortcomings. The pressure under which appellate counsel labored may well have resulted in subtle restraints which not even he could pinpoint or define. Try as we might, we could not approximate the effect which the overhanging threat of the libel suit had on the vigor of counsel's endeavors at the remand hearing. In sum, prejudice in the circumstances involved here is incapable of any sort of measurement. 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."36
The District Court's ruling on remand is vacated, and appellant's affidavit is again remanded for proceedings consistent with this opinion.
So ordered. 1976.CDC.49
APPELLATE PANEL: FOOTNOTES
* Sitting by designation pursuant to 28 U.S.C. § 294(c) (1970).