During this afternoon’s oral argument in People v. Fayed, a death penalty appeal, the Supreme Court put the appellant’s counsel in the unusual position of defending not only her client but also her own law firm. At the end of counsel’s opening argument, Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Mariano-Florentino Cuéllar all asked the attorney to explain the propriety of having as a partner in the firm a former deputy district attorney who had successfully prosecuted the defendant at trial in the very case under review.
The three justices seemed focused on the possibility of harm not to the former prosecutor’s previous client (the people of California), but to the defendant. The justices asked whether the firm might be, or might even just be perceived to be, “pulling punches” in its defense because of the former DA/now partner. The court is thus apparently treating this as a duty-of-loyalty issue, which arises in simultaneous representation situations, rather than as a confidentiality issue, which is the concern in cases of successive representations. (See In re Charlisse C. (2008) 45 Cal.4th 145, 159–160.)
Counsel responded to the questioning by assuring the court that no punches were pulled, especially since the opening brief was filed before the former DA joined the firm, and that the firm had meticulously put in place an ethical wall to prevent the former DA from having any involvement in the appeal. She also talked about the importance of not unduly restricting government attorneys from moving into private practice.
Video of the oral argument should be available here in several weeks.
Related:
Supreme Court raises the specter of disbarment for attorney conflict in death penalty appeal defense
“High court questions ex-prosecutor’s role in capital case”
“Firm tells state high court it’s in bounds of new legal ethics rule”
