Ethics

That's what a Massachusetts lawyer did during a murder trial in order to take part in a television documentary.  The client was convicted and appealed on the grounds that the lawyer's microphone-wearing resulted in ineffective assistance of counsel.  (Thanks to my colleague, Diane Juliar, for alerting me to the story.)

The Massachusetts Supreme Judicial Court ruled last week that the lawyer's conduct resulted in a conflict of interest.  But the Court affirmed the conviction, holding that the client consented to the conflict.

I certainly agree that the microphone created a conflict of interest.  The Court explained it this way:

On the one hand, counsel had a duty to give undivided loyalty to and zealous representation of his client. On the other hand, counsel assumed the obligation of wearing a wireless microphone and giving third parties seemingly unfettered access to his confidential relationship with the defendant. These competing responsibilities created an actual conflict of interest for counsel. 

Notably, in Massachusetts (unlike many jurisdictions), a defendant does not have to show that the conflict had an adverse effect on the lawyer's performance.  A mere showing of a conflict is sufficient to result in a reversal. 

The Court, however, said that the defendant consented to the conflict, because his lawyer described the dangers of the microphone with sufficient detail so as to get a knowing and intelligent waiver.  I wonder, however, whether consent would satisfy Rule 1.7, which states that a conflict isn't consentable unless the lawyer reasonably believes that he/she can represent the client effectively.  Although the microphone apparently could have been turned off at will by the attorney, it's at least arguable that no reasonable attorney could have represented her client effectively under these circumstances.  I'm not sure I necessarily disagree with the Court's ultimate conclusion on this point, but I do think this case is a tougher call than the SJC opinion suggests.

The defendant also contended that the trial court should have engaged in a colloquy with him to ensure that he fully understood the conflict and his waiver of it.  Indeed, the SJC explained that some conflicts are so severe, such as when a defense lawyer represents multiple co-defendants, that a trial judge should engage in a colloquy before permitting consent.  The SJC, however, thought that the conflict in this case was not so serious as to warrant a colloquy.  Personally, I agree that the microphone doesn't rise to the same level as representing multiple co-defendants, but where exactly is the line between conflicts that require a colloquy and those that don't?  The answer is not entirely clear to me, so I'm not sure where this microphone-wearing conflict should fall.

As my analysis reveals, I'm not that familiar with the law on colloquies or consent in the criminal context, so if anyone has deeper insights, please post them in the comments.  Was the case correctly decided?