The (non-)disqualification case of the week comes from the United States District Court for the District of Nevada and pertains primarily to criminal practitioners (although the basic concept — that lawyers can face former-client or personal-interest conflicts of interest when they later have to review objectively and possibly even challenge their own work — holds generally true in civil practice as well). In a federal habeas corpus proceeding, the state attorney general’s office filed a motion to disqualify the habeas petitioner’s private counsel because that counsel had also served as petitioner’s counsel on direct appeal in state court.
The attorney general’s objection is not altogether surprising. Generally speaking, a criminal defendant’s trial or appellate counsel should not later represent the defendant in post-conviction proceedings (whether in state or federal court). In short, the criminal defendant might want or need to assert that trial or appellate counsel provided constitutionally ineffective assistance of counsel, and asking the same counsel to review objectively and raise counsel’s own earlier ineffectiveness is an obviously conflict-laden and dubious practice. In light of this fairly well-established background, and a recent Supreme Court case, Martinez v. Ryan, further solidifying the conflict, the attorney general’s argument was fairly strong:
[The attorney general argues] that in light of this Court’s decisions regarding the disqualification of counsel in Huebler v. Vare, No. 3:05–cv–00048–RCJ–VPC, 2014 WL 1494271 (D. Nev. April 15, 2014), and Bergna v. Benedetti, 3:10–cv–00389–RCJ, 2013 WL 3491276 (D.Nev.2013), petitioner’s counsel in this case should be disqualified. In each of those cases, federal habeas counsel had previously represented the petitioner in state postconviction proceedings. This Court held in each case that, subsequent to the United States Supreme Court decision in Martinez v. Ryan, such counsel had a clear conflict of interest. In Martinez, the Supreme Court held that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceedings, there was no counsel or counsel in that proceeding was ineffective.” 132 S. Ct. 1309, 1320 (2012).
This Court pointed out that post-Martinez, federal habeas counsel who had served as state postconviction counsel necessarily had a conflict of interest because such counsel would have the duty to examine whether there were “(a) possible additional claims of ineffective assistance of . . . counsel that (b) were not pursued by state postconviction counsel through inadequate assistance.” Bergna, 2013 WL 3491276 at *2. This Court described the resulting conflict as “real, actual and current.” Id.
But here the court nevertheless refused to disqualify petitioner’s counsel, at least for now. The court reasoned that, although counsel had represented petitioner in her direct appeal, counsel did not represent her in a state post-conviction relief petition and the current federal habeas petition did not raise an ineffective-assistance-of-counsel claim. The problem with this seemingly short-sighted reasoning is that no state petition had ever been filed, and as the attorney general asserted, “petitioner’s current counsel likely advised petitioner regarding her decision not to file a state postconviction petition.” The court, however, dismissed this assertion as “purely speculation; nothing in the current record before this Court indicates that an actual, current conflict of interest exists.” Thus the court denied the motion to disqualify, although it did leave the door open for a later motion: “Such denial is without prejudice to renew the motion if an actual conflict becomes apparent at a later point in these proceedings.”
The full order is available here: Taylor v. Myles, No. 3:13-CV-00035-MMD, 2015 WL 1307308 (D. Nev. Mar. 23, 2015).
 For example, the Ninth Circuit has pointed out the conflict when a petitioner’s appellate counsel (namely, Cimino) later attempts to serve as post-conviction relief counsel:
Moormann’s claim that cause excuses his procedural default is, however, not grounded on allegations of Cimino’s ineffectiveness in his role as Moormann’s counsel during his first PCR petition. Rather, the claim is grounded in allegations that Cimino was ineffective when serving as Moormann’s counsel on direct appeal, for failing to raise various issues that the state courts later found precluded because they were not raised on direct appeal. There is a Sixth Amendment right to counsel during a criminal defendant’s appeal as of right. Therefore, if Cimino was constitutionally ineffective in failing to present these claims on direct appeal, Moormann may have demonstrated cause sufficient to overcome the procedural bar. Cimino was not trial counsel and should have had no conflict of interest in raising ineffective claims on direct appeal. He was, however, conflicted in the presentation of the first PCR petition, because he had been counsel on direct appeal.
Moormann v. Schriro, 426 F.3d 1044, 1058-59 (9th Cir. 2005) (citations omitted). I have also argued that prosecutors face similar conflicts of interest when they are later asked to review their own work for possible errors – including the ultimate error of having wrongfully convicted an innocent person. Keith Swisher, Prosecutorial Conflicts of Interest in Post-Conviction Practice, 41 Hofstra L. Rev. 181 (2012).