Thurgood Marshall

“ I would grant Bonin's petition to determine whether the trial court had a duty to inquire into the potential conflict of interest arising from the alleged literary rights deal between Charvet and Bonin. It is well established that the right to effective assistance of counsel carries with it "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981) . It is also apparent that a literary rights agreement may seriously undermine an advocate's loyalty to his client's interests. ”

“ Given the finding that Charvet's relationship with Munro created a conflict, it seems beyond doubt that Charvet must have refrained from pursuing certain lines of inquiry. Similarly, if the trial court on remand were to find that an actual conflict resulted from the literary rights agreement, it would be exceedingly difficult for that court, or an appellate court, to determine whether counsel's actions or inactions resulted from strategic choices made in the interest of his client or, rather, from counsel's own interest in maximizing the trial's drama so as to create a bestseller. ”

“ A grave conflict of interest can arise out of an agreement between a lawyer and an accused giving the lawyer the right to publish books, plays, articles, interviews, pictures, or related literary rights concerning the case. ”

“ It may be possible in some cases to indentify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. ”

“ Such a presumption is arguably tenable in those cases because counsel's basic loyalty to his client is not in question. When a known conflict undermines counsel's duty of loyalty, "perhaps the most basic of counsel's duties," id., at 692, 104 S.Ct., at 2067, however, that presumption is inapplicable; instead, a court must presume that counsel's divided loyalties adversely affected his performance on behalf of his client. ”

“ The same factors that make it nearly impossible to show prejudice make it equally difficult to prove adverse effect. In this case, for example, how could petitioner demonstrate on appeal that Charvet's attorney-client relationship with Munro limited Charvet's ability to cross-examine Munro? The California Supreme Court was satisfied that Charvet's attack on Munro's credibility during cross-examination was "broad and deep." But an appellate court cannot determine what Charvet was unable to ask for fear of violating Munro's attorney-client privilege. ”

“ If such an arrangement or contract is part of the fee, in lieu of the fee, or a condition of accepting the employment, it is especially reprehensible." ABA Standards for Criminal Justice, 4-3.4 (2d ed. 1980) . ”