“Unless the trial court knows or has reason to know of a potential conflict, the court does not have an affirmative duty to inquire about the attorney’s joint representation of codefendants.”

Justice Stewart, Majority Opinion

“I would address the right to counsel in Article I, Section 10 of the Ohio Constitution and hold that it requires a trial court to make a prompt inquiry into whether a conflict exists any time two or more defendants facing charges arising out of the same matter are represented by the same attorney.”

Justice Brunner, Dissenting Opinion

On September 15, 2021, the Supreme Court of Ohio handed down a merit decision in State v. Williams, Slip Opinion No. 2021-Ohio-3152. In a 6-1 opinion written by Justice Stewart, the Court held that absent a specific factor which would alert the trial court to a possible conflict of interest created by joint representation in a criminal case, the trial court had no affirmative duty to inquire into the possible conflict created by joint representation of co-defendants. The Court added that making such an inquiry is the better practice but did not make it obligatory. Justice Brunner dissented. The case was argued April 13, 2021.

Case Background

Marshall Williams and his wife, Shawnte, were each indicted on various drug possession and trafficking charges. They were represented by the same attorney and agreed to a joint plea deal. Shawnte pled guilty to possession of criminal tools with a forfeiture specification.  Marshall pled guilty to one count of drug trafficking and one count of drug possession, each with a forfeiture specification. In exchange for their guilty pleas, the state nolled the remaining counts on the remaining indictments. The trial court sentenced Marshall to nine years, with an order to pay fines, forfeit certain property, and submit to five years of mandatory post-release control. Shawntee was sentenced to five years of probation and a fine. When asked if they were satisfied with their representation, both said they were. Marshall appealed.

On appeal to the Eighth District, Marshall argued that he was denied due process and his right to counsel because the trial court failed to make sure that his lawyer explained the conflict created by the joint representation before allowing the matter to go forward. In Williams I the appeals court overruled the conflict-of-interest claim on the grounds that the record did not show any special reason the trial court knew or should have known of the conflict. Williams filed for reconsideration. The appeals court vacated its judgment in Williams I and again affirmed Marshall’s convictions in Williams II. The two cases were consolidated, and the following proposition of law was 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.

Read the analysis of the oral argument here.

Key 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.”) 

Prof.Cond.R. 1.7(c) (prohibits an attorney from representing a client, regardless of the client’s informed consent, if the representation is prohibited by law or when the representation would involve the assertion of a claim by one client against another client represented by the attorney in the same proceeding.) 

Fed.R.Crim.P. 44(c)(2) (“The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation.”) 

Halloway v. Arkansas, 435 U.S. 475 (1978) (Detailing “suspect” examples of when joint representation of conflicting interests can impact the rights of criminal defendants. For example, joint representation could preclude an attorney from objecting to evidence prejudicial to one client but favorable to another or having to minimize culpability of one by emphasizing that of another. “The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.”) 

Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) (If the trial court did not know and should not reasonably have known that a conflict existed, then “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance” in order to establish a Sixth Amendment violation.) 

State v. Manross, 40 Ohio St. 3d 180 (Ohio 1988) (Raising the possibility of a conflict of interest is insufficient to establish “the constitutional predicate for [a] claim of ineffective assistance of counsel.” It is not constitutionally mandated that a trial court inquire of co-defendants whether they wish to have separate counsel.) 

State v. Gillard, 64 Ohio St.3d 304 (1992) (when reviewing a case in which a trial court did not inquire into whether an attorney’s representation of multiple defendants presented a conflict of interest, courts must apply a two-step approach. First, the court must determine whether, in the absence of a timely objection, the trial court knew or reasonably should have known that a possible conflict existed. If the trial court’s affirmative duty arose but it did not inquire, the case must be remanded to the trial court with instructions to conduct a hearing to determine whether an actual conflict of interest existed. Second, if the court’s affirmative duty to inquire into a possible conflict with multiple representation did not arise, the defendant must show that an actual conflict of interest adversely affected his lawyer’s performance.) 

State v. Ingol, 89 Ohio App.3d 45 (9th Dist.1993) (absent an objection or circumstance showing the court should have reasonably known of a possible conflict, a trial court may assume no conflict exists or that the risk is known and accepted.)  

State v. Ermekeil, 8th Dist. Cuyahoga Nos. 63703 and 63704 (Sept. 16, 1993) (the fact that one defendant was charged with fewer offenses or that one received a more advantageous plea offer does not establish an actual conflict.)  

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” and “both defense counsel and the trial court are under an affirmative duty to ensure that a defendant’s representation is conflict-free.”)  

State v. West, 2018-Ohio-640 (12th Dist.) (finding that in order to demonstrate an actual conflict of interest, a defendant must put forth a viable alternative defense that was not undertaken due to the attorney’s divided loyalties.) 

Merit Decision

Analysis

Basics of Conflict-Free Representation

The fundamental right to counsel includes the right to representation free of any conflicts of interest. The duty to ensure this falls both on defense counsel and the trial court. But the trial court’s duty only arises when the trial court knows or has reason to know that a possible conflict of interest exists or when the defendant objects to the joint representation.

Two-Step Approach

Past precedent has established a two-step approach in reviewing a case in which a trial court did not inquire into whether counsel’s representation of multiple defendants presented a conflict of interest. First, the reviewing court must determine whether there was a duty to inquire in the first place. In the absence of a timely objection did the trial court know or should have known that a possible conflict existed?  If such a duty arose but the trial court made no inquiry, the case must be remanded to the trial court to hold a hearing to determine whether an actual conflict of interest existed. In the absence of an objection or circumstances under which the trial judge should reasonably have known about a possible conflict, the trial court is free to assume there is no conflict or that the co-defendants have known and accepted any risk of the conflict.

Second, if the reviewing court determines no duty of inquiry by the trial court arose, the defendant must prove that an actual conflict of interest adversely affected his counsel’s performance. The mere possibility of a conflict isn’t good enough. There must be an actual conflict of interest, meaning the defendants’ interest diverge regarding a material factual or legal issue. The majority cites to the Manross case as key on this point.

State v. Manross: No Duty of Inquiry into Possible Conflict of Interest

In Manross while the Court acknowledged that the better practice is for the trial court to advise each defendant of his or her right to separate representation, the failure to do so is not an automatic error.

“Unless the trial court knows or has reason to know of a potential conflict, the court does not have an affirmative duty to inquire about the attorney’s joint representation of codefendants,” Stewart wrote, quoting from the Manross opinion.

The reasons the Court found no actual conflict in Manross was there was no objection by either codefendant (a mother and son) to the dual representation, making it their burden on appeal to show there was an actual conflict and that the conflict adversely affected their lawyer’s performance. The joint defense did not result in each blaming the other and they had a common interest in attacking the credibility of the state’s witnesses. The fact that the mother was charged with only one count while her son was charged with nine did not establish an actual conflict of interest.  

State v. Gillard: Affirmative Duty to Inquire into Possible Conflict of Interest

The same lawyer represented two brothers, John and William Gillard, in connection with the shooting deaths of two people and the attempted aggravated murder of a third. The charges against William were dismissed and on advice of counsel he pleaded no contest to a misdemeanor charge of discharging a firearm outside a residence. John was indicted on aggravated murder charges with death penalty specifications. He went to trial with the same lawyer who represented both brothers initially.

William was called to testify as a defense witness in John’s trial. The state brought it to the trial court’s attention that there was an ongoing grand jury investigation into William and that there was a potential conflict of interest because of the prior dual representation of the brothers. The trial court appointed independent counsel for William but made no inquiry as to whether John had received and was receiving conflict-free representation.

William testified that the charges against him had been dismissed after the preliminary hearing, but the charges against John were not.  William also testified that he never had a gun on the day of the shootings and was not involved in them. John was convicted and the jury recommended the death penalty.

On appeal, the Supreme Court of Ohio found that “the trial court knew (or at least should have known) that a possible conflict of interest existed” and should have inquired into the possible conflict to decide whether John had and would receive the right to conflict-free counsel. The Court also noted the state had brought the possible conflict to the attention of the court, and in any case, the conflict was apparent from the record. Because the high court could not determine whether there was an actual conflict of interest, despite what it considered overwhelming evidence of John’s guilt, the case was sent back to the trial court to hold a hearing to determine whether an actual conflict of interest existed.

Application of Precedent to this Case

No Affirmative Duty of Inquiry

The majority holds that the affirmative duty of the trial court to inquire into the possibility of a conflict related to the dual representation did not arise in this case. No possible conflict was brought to the attention of the trial court. Nothing in the record suggests a possible conflict. When addressing the court Marshall did not say anything that would have put the court on notice of a possible conflict created by the joint representation. When asked, Marshall stated he was satisfied with his representation. When asked, he stated there was nothing about his case he did not understand. The Court concludes that unlike Gillard, where the trial testimony suggested the possibility of conflicting interests, nothing in this record indicated that the trial court should have been aware of the possibility of a conflict.

No Actual Conflict Existed

The majority found no indication that the interests of Marshall and his wife diverged on a material legal or factual issue. Marshall did not blame his wife or suggest that he was bearing culpability for his wife’s actions. While Marshall argued that his interests could have diverged from his wife’s, a mere possibility of a conflict of interest is not sufficient to show ineffective assistance of counsel. Neither the fact that Shawnte was charged with fewer offenses than Marshall nor the fact that she got a better plea offer establish an actual conflict of interest. Marshall did not present any alternative defense or strategy that was not used because of the dual representation. In short, the high court finds no violation of Marshall’s right to conflict-free representation nor of his fundamental right to a fair trial.

Best Practice

Marshall also argued that a judicial inquiry into a potential conflict of interest should be required whenever a trial court is aware that two or more co-defendants are represented by the same attorney. He cites to Fed.R. Crim.P. 44(c)(2) which provides “the court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” The majority agrees this would be a best practice, but makes it clear it is not constitutionally required and if adopted should be done by rule or legislation.

Conclusion

Nothing in the record requires an affirmative duty of the trial court to inquire about a potential conflict of interest from the joint representation of Marshall and Shawnte, and nothing in the record shows any actual conflict of interest during the joint representation.

“Accordingly, we hold that when a trial court does not know, and should not reasonably have known, of a possible conflict of interest in an attorney’s representation of two or more codefendants charged with a crime, the trial court has no affirmative duty to inquire whether a conflict of interest exists.”

Case Disposition

The judgment of the court of appeals is affirmed.

Justice Brunner’s Dissent

Article I, Section 10 of the Ohio Constitution

Justice Brunner finds the majority analysis incomplete because it does not address Article I, Section 10 of the Ohio Constitution which provides that “in any trial in any court the party accused shall be allowed to appear and defend in person and with counsel.” Brunner notes that Marshall Williams did raise this state constitutional issue below.  She would address the right to counsel under this state constitutional provision and hold that “it requires a trial court to make a prompt inquiry into whether a conflict exists any time two or more defendants facing charges arising out of the same matter are represented by the same attorney.” Because the trial court made no such inquiry in this case, she would remand the matter to the trial court to decide whether an actual conflict did exist.

Brunner discusses Manross, Gillard, and Dillon on the right to counsel in the context of multiple representation, but notes that the caselaw applying Article I, Section 10 is “sparse.” She notes the Court has held in State v. Milligan that the state constitutional provision is “comparable to but independent of similar guarantees provided by the Sixth Amendment to the United States Constitution.” They are similar in that both provide fundamental rights.  A second similarity between the state and federal provisions is both include the right to be free from conflicts, including conflicts from multiple representation. A third similarity is the role of the trial court in protecting the right to counsel.

Justice Brunner then examines how Article I, Section 10 differs from the Sixth Amendment. She believes the Court has found at least once,  in State v. Bode, the right to counsel under the Ohio Constitution to be broader than its federal counterpart.

“In my view, Williams has identified compelling reasons why the right to counsel under Article I, Section 10 provides greater protection than the Sixth Amendment in this case. Thus, I would hold that Article I, Section 10 requires a trial court to inquire into the propriety of multiple representation when an attorney represents two or more individuals charged with related crimes,” Brunner wrote.

A defendant’s decision to agree to multiple representation must be knowing and intelligent because such representation can lead to conflicts of interest that undermine the right to counsel, where what might help one client can penalize another.

Justice Brunner disagrees with the state that a trial court has a duty to inquire into the propriety of joint representation only when the conflict potential is apparent from the record, noting that many conflict situations prevent an attorney from preserving such matters in the record.

“We likewise should not ignore the potential that, for one reason or another, an attorney may not correctly assess his or her ability to fully represent the interests of multiple clients simultaneously,” Brunner wrote.

Bottom Line for Justice Brunner

“Together, these concerns envisage the fair conclusion that Article I, Section 10 requires a trial court to inquire into the propriety of multiple representation in any case in which two or more defendants charged with crimes arising out of the same matter are represented by the same attorney… I would therefore hold that such an inquiry was required in this case. I would also hold that because an inquiry was not conducted in this case, the appropriate remedy is to remand the case to the trial court to determine whether an actual conflict existed.”

Handling Multiple Representation by Rule or Statute

The majority wrote “…requiring trial courts to promptly inquire about an attorney’s potential conflict of interest whenever that attorney represents two or more criminal codefendants should be done by rule or legislation.” Justice Brunner suggests several key points that any rule or legislation should address.

Brunner starts with Fed.R.Crim.P. 44, and notes that a general collective advisement to a group of defendants would not suffice under this rule. Other concerns are that the inquiry and advisements should be placed on the record, should be conducted outside the presence of a jury, should ensure that the obligation to keep the multiple representation conflict-free is ongoing, as some conflicts do not arise until later in a case, and that the waiver can only be accepted after any potential conflict has been clearly and unambiguously identified and explained on the record.

Trial Court Judge (affirmed)

Cuyahoga County Court of Common Pleas Judge Kathleen Sutula

Ninth District Court of Appeals (affirmed)

Opinion by Judge Mary Eileen Kilbane, joined by Judges Eileen T. Gallagher and Anita Laster Mays

Concluding Observations

Here’s what I wrote after argument:

“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.”

I was very pleased to see Justice Brunner do a state constitutional analysis, finding greater protection to be free from conflict-free representation under Article I Section 10 of the Ohio Constitution. The Court talks about the new judicial federalism a lot and urges lawyers to make more state constitutional law arguments, but the jurisprudence on this still lags behind reliance on the U.S. Constitution.