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 ...