Update: On September 15, 2021 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here

“So, are you saying that just by looking at the fact that they are husband and wife and they are charged, that’s a conflict?”

Chief Justice O’Connor to the assistant public defender

“What would be the harm in the trial court inquiry?”

Justice Stewart to the assistant prosecutor

On April 13, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. Marshall  Williams, 2020-0658. At issue in this case is whether a trial court has an absolute duty to inquire about a potential conflict of interest whenever criminal co-defendants are represented by the same counsel. The case was consolidated with case number 2020-0991.

Case Background

Marshall Williams and his wife, Shawnte, were each charged with various drug crimes. Mr. and Mrs. Williams retained the same attorney. Mr. Williams, along with his wife, accepted a package plea agreement. At a group-plea hearing involving five defendants, including Mr. and Mrs. Williams, the trial court did not specifically ask Mr. Williams whether a conflict of interest existed due to the joint representation, or whether Mr. Williams wanted to waive any potential conflict. 

The trial court sentenced Mr. Williams to serve nine years, pay fines, forfeit certain property, and submit to five years of mandatory post-release control. Mrs. Williams was sentenced to five years of probation. Mr. Williams appealed.

The Appeal

In a unanimous decision, the Eighth District affirmed the trial court’s decision. Relevant to this appeal, the appellate court held that the trial court had no duty to inquire about any potential conflicts of interest incurred from the dual representation. Moreover, the court found that the record here did not indicate that the trial court knew, or should have known, that a particular conflict existed. Neither Mr. Williams nor Mrs. Williams objected to the dual representation, but rather separately expressed to the trial court that they understood their case and were satisfied with their attorney. Additionally, the Eighth District found that no actual conflict existed. In fact, the court concluded that Mr. and Mrs. Williams benefited from the joint representation. For these reasons, the Eighth District held that the trial court had committed no error.

Key Statutes and Precedent

U.S. Const., Amend VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”)

*Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) (Unless the trial court knows or reasonably should know that a particular conflict exists or unless the defendant objects to multiple representation, the court need not initiate an inquiry into the propriety of such representation.)

*State v. Manross, 40 Ohio St. 3d 180 (Ohio 1988) (It is not constitutionally mandated that a trial court inquire of co-defendants whether they wish to have separate counsel.)

*State v. Gillard, 1992-Ohio-48 (“[W]here a trial court knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists.”)

State v. Ermekeil, 8th Dist. Cuyahoga Nos. 63703 and 63704 (Sept. 16, 1993) (A trial court may reasonably assume that no conflict of interest exists, or that the defendants knowingly accepted any potential conflict because the attorney, not the court, is in the better position to determine whether a conflict exists or might develop.)

*State v. Dillon, 74 Ohio St.3d 166, (1995) (“A possible conflict of interest is inherent in almost all instances of joint or multiple representation of conflicting interests.”) 

Cleveland v. Harris, 2018-Ohio-1522 (8th Dist.) (“In reviewing a conflict of interest claim, we must first resolve two distinct issues. First, we must determine whether the trial court had a duty to investigate the potential conflict of interest. If the duty to inquire did not arise, then we must determine whether an actual conflict occurred that adversely affected counsel’s ability to represent the defendant.”)

State v. Hale, 2019-Ohio-3276 (“To establish an actual conflict, a defendant must show: (1) the existence of some plausible alternative defense strategy or tactic that might have been pursued and (2) that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.”)

*cited by counsel at oral argument

Williams’ Proposition of Law Accepted for Review

A trial court has a duty to inquire into a possible conflict created by an attorney’s dual or multiple representation of codefendants in a criminal case.

At Oral Argument

Arguing Counsel

Robert B. McCaleb, Assistant Public Defender, Cuyahoga County, for Appellant Marshall Williams

Frank Zeleznikar, Assistant Prosecutor, Cuyahoga County, for Appellee State of Ohio

Williams’ Argument

A possible conflict of interest is inherent in almost all instances of joint or multiple representation. The potential conflict in a package plea deal comes from the attorney’s motivation to help client B by getting client A to plead. That motivation may come completely separately from the actual culpability of either defendant or the strength of the prosecution’s case. Here there was no inquiry into the possible conflict of interest raised by the dual representation.

There is no reason to expect an ordinary criminal defendant to know on his own that it is dangerous and potentially unethical for one attorney to represent two people in the same criminal case. State v. Dillon instructs that “a possible conflict of interest is inherent in almost all instances of joint or multiple representation.” A trial court is already required to inquire whenever it knows or reasonably should know that a potential conflict of interest exists.

This court should close the circle begun with State v. Gillard and State v. Dillon by explicitly requiring judicial inquiry whenever dual representation of co-defendants in the same criminal case is occurring. A possible conflict of interest is all that is needed to initiate the inquiry. A possible conflict of interest can occur at any time that the defendants’ interests might diverge. The mere fact that the defendants were being represented by the same attorney creates a possible conflict of interest.

It is true that certain conflicts of interest can be waived. But those must affirmatively be waived because of what is at risk. Sometimes a conflict matures and becomes more serious over time. Other conflicts cannot be waived. It depends on the facts of the case. Ultimately the rules of professional conduct can serve as a backstop. The trial court must first engage in an inquiry to make sure the co-defendants are aware that they have the right to independent counsel just as the trial court must ensure that the defendants are aware that they have the right to counsel at all. In this case the trial court knew or at least should have known that the parties were being represented by the same lawyer which raises the duty at least to inquire.

If the case were to be remanded and the trial court determines that there was a conflict of interest or that there should have been separate counsel the appropriate remedy would be to vacate the plea at that point and restart the case. This sort of complication is why the quicker this is done in future cases the more smoothly it will go. If the trial court determines that there was an actual conflict of interest, Mr. Williams’ counsel would then move to vacate the plea as not having been knowingly or intelligently made, because it was made with the assistance of actually conflicted counsel. At this point the prejudice is  that there was a possible conflict of interest and no inquiry was made.

If the trial court finds that Mr. Williams was prejudiced, nearly all the rights of a criminal defendant are implicated, particularly the right to counsel and the right to due process. The problem is not that Mr. and Mrs. Williams are husband and wife, but that they are co-defendants. That alone is sufficient to create a possible conflict of interest. They were represented by an attorney who has since resigned his license.  So, there needs to be a remand for a hearing on the question of whether there was a possible conflict.

State’s Argument

The sole question before this court is whether the trial court is always required to inquire of co-defendants when they are represented by the same counsel even if neither defendant objects to the joint representation at the time of trial. This court has already answered that question in the negative in State v.Manross. Both the U.S. Supreme Court and this court have recognized that multiple representation does not violate a defendant’s right to effective assistance of counsel unless it gives rise to a conflict of interest.

Under existing precedent, it is a best practice to have a trial court inquiry into potential conflicts arising from joint representation. But the issue here is not whether it is a best practice. The issue is whether it is constitutionally required. The context for that is effective assistance of counsel. Effective assistance of counsel means unconflicted counsel.  This court clearly can read that into the Ohio Constitution, which is a document of independent force. But most courts in jurisdictions that have tackled this issue have done so by criminal rule.

The state is not opposed to a criminal rule that addresses a trial court’s responsibility regarding joint representation. Clearly the trial courts could benefit from a criminal rule mandating what to do in this situation. If this court wants to draft such a rule, the proper avenue is through the rule-making process, not by finding a constitutional requirement. But the attorney and his or her clients are still in the best position to determine whether there is a conflict. According to existing precedent, the trial court’s duty to inquire is when the trial court knows or reasonably should know that a conflict exists. Also, the practice of the prosecutor’s office in Cuyahoga County is to bring a conflict of which it is aware of to the attention of the trial court because the state doesn’t want a conflict to arise later down the road.

This court’s decision in Manross is instructive. That case involved a mother and a son who was selling drugs out of their home. The son was charged with 9 counts of trafficking and related charges and the mother was charged with just one count. They had different theories of liability. In its decision this court specifically stated that “the differing degrees of proof against the co-defendants are in and of themselves insufficient to establish an actual conflict of interest. At best they are a basis for speculation.”

Admittedly, there are some conflicts that cannot be waived, such as a case in which one defendant is literally pointing the finger at the other defendant. But this is not such a case. When there is evidence of an actual conflict, the remedy is to remand the case back to the trial court or have an after-the-fact hearing to determine whether there was an actual conflict.

In this case, the disparity in the sentences is not in and of itself any indication of a conflict. The state never argued for a specific sentence as part of the plea agreement.  Generally, to show a conflict, a party must show that there was a defense that one of the defendants could not use because it would require the defense attorney to violate his or her duty of loyalty to the other co-defendants. That was simply not the case here.  In situations where the defendant does show that there was an actual conflict of interest, the defendant still has remedies, such as a petition for postconviction relief, claiming a Sixth Amendment violation and comparable violations under the Ohio Constitution, based on ineffective assistance of counsel due to a conflict.  Or if it is obvious from the record, this issue could be raised on direct appeal. But in this case, there is no indication of an actual conflict. Manross makes it clear that mere speculation is not going to be enough to be raised to the level of an actual conflict.

What Was On Their Minds

Potential for Conflict with Joint Representation

Isn’t it foreseeable that there would be a time where there are co-defendants and one is totally oblivious to the fact that there is a conflict here, asked Chief Justice O’Connor? What about the prosecutor’s role here? Obviously, the prosecutor is seasoned enough to realize that there very well may be a conflict and they can see it. What’s the duty of the prosecutor?

Isn’t a conflict obvious in a criminal case when a defense counsel is representing two people with different theories of guilt on each one of them, asked Justice Donnelly? Doesn’t that give the prosecutor the chance during plea negotiations to use one defendant as leverage over the others?

Was the disparity in the sentences here evidence of a conflict, asked Justice Brunner?

Unpacking This Joint Representation

Mr. Williams was sentenced and his wife avoided jail and was put on probation, noted Chief Justice O’Connor, adding that the defense was negotiating a package and the parties were not pointing fingers at each other. How would the judge have known to view that as a conflict? Is it reasonable for a trial court to assume no conflict and that the defendants knowingly accepted the risk of conflict?

What’s the factual basis against the wife in this case, asked Justice Donnelly? If she had her own zealous attorney representing her, might she not have had the charges dismissed?

What is the prejudice here, asked Justice Brunner?

Why isn’t it a constitutional requirement that a criminal defendant understand what sort of representation he or she is entitled to, asked Justice Stewart?

Would the Court have to overrule Manross to find for the defense, asked Justice Fischer?

Whose Job is it to Determine a Conflict?

If no one raises or complains about it and if there’s nothing that indicates to the trial court judge that there may be a problem with a conflict, what authority is there to say anytime one lawyer represents co-defendants, the trial court should automatically inquire about a potential conflict, asked Justice Stewart? Anytime there is a hint of a conflict?

Role of the Trial Court

If this court agrees and remands the case and tells the trial court it had to conduct a conflicts inquiry, what happens if the trial court finds there should have been two counts, rather than one, asked Justice Brunner? Where does the trial court have the authority or the jurisdiction to do that once there has been a final sentence imposed in the case? Can the trial court vacate the plea without somebody having to file a motion to withdraw the guilty plea?

Should the judge make a conflicts inquiry any time there are multiple defendants represented by the same lawyer, asked Chief Justice O’Connor? Should that be extended to the same law firm?

Waivable or Nonwaivable Conflicts

Is this kind of conflict really waivable by a client, asked Justice Brunner? Aren’t there some conflicts involved with joint representation that cannot be waived by the clients?

Best Practices

What would be the harm in the trial court inquiry, asked Justice Stewart, noting it would just be a matter of seconds and could ward off potential problems down the road, and ensure criminal defendants understand that they have the right to separate counsel. Why isn’t that a good practice? Is the state only opposed to this being required under the Constitution?

Should it really just be left up to the attorney to make this call, asked Chief Justice O’Connor?

How would the Court draft a rule telling attorneys and courts when joint representation can go forward and when it can’t, asked Justice Brunner? Aren’t there a myriad of different situations that we would have to anticipate?

How it Looks from the Bleachers

To Professor Emerita Bettman

It should be a given that joint representation in a criminal case is dicey. Justices Donnelly, Brunner, Stewart and the Chief definitely seemed troubled by this particular joint representation. Justice Brunner mentioned the disparity in the sentences and Justice Donnelly pressed about what might have happened if Mrs. Williams had separate representation. But it was hard to tell what the Court thinks is the proper remedy here. Sensing that a majority seemed troubled by this joint representation, the assistant prosecutor was pushing for rulemaking if the Court thinks a fix is in order, but not a constitutional mandate. I think at the least the Court will set forth a “best practices” requirement here.”