NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12252

COMMONWEALTH vs. JOSEPH COUSIN.

Suffolk. September 5, 2017. - January 11, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.

Conflict of Interest. Attorney at Law, Conflict of interest. Practice, Criminal, Assistance of counsel.

Indictments found and returned in the Superior Court Department on September 4, 2002.

The cases were tried before Nancy Holtz, J., and a motion for a new trial, filed on March 1, 2013, was heard by Janet L. Sanders, J.

The Supreme Judicial Court granted an application for direct appellate review.

Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth. Robert F. Shaw, Jr., for the defendant.

LOWY, J. Following a jury trial in the Superior Court, the

defendant, Joseph Cousin (Cousin), was convicted of murder in

the second degree. Cousin filed a motion for a new trial, 2

claiming that his trial counsel was ineffective because he was

burdened by an actual conflict of interest. A Superior Court

judge granted Cousin's motion for a new trial. The Commonwealth

appealed, and we allowed its application for direct appellate

review.1 The issue before this court is whether Cousin presented

sufficient evidence to establish that his trial counsel was

burdened by an actual conflict of interest. Although Cousin has

set forth the basis for what may well constitute a potential

conflict of interest, we conclude that he failed to meet his

burden of demonstrating that his trial counsel was operating

under an actual conflict of interest. Therefore, we vacate the

allowance of Cousin's motion for a new trial and remand the case

to the Superior Court for further proceedings to determine

whether there was a potential conflict causing prejudice that

would warrant a new trial.

1. Prior proceedings and background. We briefly indicate

the nature of Cousin's criminal case, followed by a summary of

the facts pertinent to Cousin's conflict claim, as they were

found by the judge. We also reserve certain facts for later

discussion.

Following an investigation by the Boston police department

1 The Commonwealth also moved for reconsideration of the motion judge's decision and to reopen the evidence. Following a hearing on that motion, the judge issued an amended memorandum but otherwise declined to reopen the evidence or reconsider her decision. 3

(BPD) homicide division, Cousin and another man were charged

with murder for the shooting death of a young girl. In 2004,

Cousin and his codefendant were tried jointly for the murder,

and the jury acquitted the codefendant. The jury were

deadlocked concerning Cousin, and eventually a mistrial was

declared. In Commonwealth v. Cousin,

(2007), cert. denied,

(2008), we determined

that double jeopardy did not bar Cousin's retrial because the

prosecutor's inquiry into the jurors' criminal records during

deliberation was not government misconduct intended to goad the

defendant into moving for a mistrial.

Cousin was retried for the murder in 2009, and was

represented by Attorney William White (White). Cousin was

convicted of murder in the second degree, and he was later

sentenced to life in prison. His direct appeal from his

conviction to the Appeals Court has been stayed pending the

outcome of this case.

In the meantime, Cousin, represented by new counsel, moved

for a new trial, arguing that White was burdened by an actual

conflict of interest. The primary grounds for the alleged

actual conflict were the involvement of White and his former law

firm in two Federal civil rights lawsuits. Specifically, White

and his former law partners defended members of the BPD who were

accused of misconduct in the course of other, unrelated criminal 4

investigations.

The judge, who was not the trial judge, held three days of

evidentiary hearings before granting Cousin's motion. We

present the pertinent facts she found in her written memorandum

of decision and order.

a. White and the Federal civil rights cases. White joined

the law firm of Davis, Robinson & White (DRW) as a partner in

the early 1990s. DRW was comprised of three partners: White,

Willie Davis, and Frances Robinson. White concentrated

primarily on criminal defense, and he and Robinson

intermittently represented police officers in disciplinary and

administrative hearings. An attorney for the Boston police

patrolmen's union occasionally referred police discipline cases

to Robinson; however, there was no indication that Robinson or

DRW had a formal contractual relationship with the patrolmen's

union, the BPD, or the city of Boston (city).

DRW was organized as a limited liability partnership. The

partners did not share profits or fees, and each partner earned

only the money he or she generated. The partners generally

worked independently on cases, particularly their criminal

matters. The partners did, however, share common overhead

expenses and office resources. Occasionally, the DRW partners

would meet to discuss their cases. However, there is no

indication that these informal discussions involved the 5

disclosure of confidential client information.

White left DRW in early 2007 and formed his own law firm,

William White & Associates (White & Associates). Several years

thereafter, White operated White & Associates in office space he

rented in the same building as DRW; however, his firm was

neither connected to, nor was his practice affiliated with, DRW.

At the hearing on Cousin's motion, White testified that after he

left DRW, his former partners only referred him a limited number

of civil litigation matters. In January, 2009, the same year as

Cousin's second trial, White relocated his firm to a different

office building in Boston.

Cousin's claim that White was burdened by an actual

conflict of interest focused primarily on the involvement of

White and Robinson in two Federal civil rights cases, Drumgold

vs. Callahan, U.S. Dist. Ct., No. 04-11193-NG (D. Mass. 2004)

(Drumgold), and Cowans vs. Boston, U.S. Dist. Ct. No. 05-11574-

GGS (D. Mass. 2005) (Cowans). The plaintiffs in the Drumgold and

Cowans cases alleged that BPD homicide investigators had

committed acts of police misconduct that led to their erroneous

convictions, which were later overturned. Cousin's motion

relies heavily on the purported similarities between the police

investigations underlying the Drumgold and Cowans cases and his

own.

i. Robinson's involvement in the Cowans case. The judge 6

found that Robinson represented Rosemary McLaughlin, a member of

BPD's latent fingerprint unit, who was a named defendant in the

Cowans civil rights lawsuit.

Stephen Cowans was convicted of a shooting, in part based

on fingerprints that were recovered from the crime scene and

that McLaughlin, and another member of BPD's latent fingerprint

unit whose work McLaughlin verified, matched to him.2 Several

years later, items from the crime scene underwent

deoxyribonucleic acid (DNA) testing. The testing revealed that

Cowans's DNA was not present on any of the items. A further

internal investigation also revealed that a latent fingerprint

recovered from the crime scene had been erroneously

individualized to Cowans. Based on this investigation, in 2004,

the Commonwealth joined in Cowan's motion for a new trial and

the conviction was vacated.

Following his exoneration, Cowans filed the Federal civil

rights lawsuit seeking damages against the BPD and certain

officers involved in the investigation, including McLaughlin.

Robinson filed her notice of appearance on behalf of McLaughlin

on April 5, 2006.3 Cowans's complaint alleged that McLaughlin

had discovered but concealed the fact that his fingerprints had

2 The full factual background of that case is set forth in Commonwealth v. Cowans,

(2001). 3 The record is unclear concerning how Robinson came to represent McLaughlin. 7

been erroneously matched to the those recovered at the crime

scene. The claims against McLaughlin focused exclusively on her

involvement in Cowans's investigation and did not implicate her

conduct in other investigations. Robinson represented

McLaughlin until the Cowans case was resolved in September,

2007. Although the city paid the settlement in the Cowans case,

it did not pay for Robinson's defense of McLaughlin.

ii. White's involvement in the Drumgold case. White's

involvement in the Drumgold litigation began in 2006, while he

was a partner at DRW. White represented two of the BPD officers

named in the Drumgold case in succession -- a detective and then

Lieutenant Timothy Callahan.

Shawn Drumgold was convicted of murder in connection with

the 1988 shooting death of a twelve year old girl.4 After

Drumgold had been convicted and sentenced, he filed several

motions for a new trial, seeking to have his conviction

overturned on numerous grounds, including that members of the

BPD had coerced witnesses into implicating him in the shooting.

There also were claims that BPD officers failed to provide

exculpatory evidence by not disclosing favorable treatment given

to a prosecution witness. The Commonwealth's assessment of the

investigation concluded that Drumgold had not received a fair

4 The full factual background of that case is set forth in Commonwealth v. Drumgold,

(1996). 8

trial, and his conviction was vacated in 2003.

In 2004, Drumgold filed the Federal civil rights lawsuit,

claiming that the BPD officers involved in his investigation

engaged in coercive tactics, pressured witnesses to give

favorable testimony, and withheld exculpatory evidence, leading

to Drumgold's erroneous conviction. Drumgold also claimed that

the BPD encouraged such conduct. The city, as one of the named

parties, retained its own counsel, but hired White to represent

the detective in his individual capacity. White was later hired

to represent Callahan after the detective had been dismissed

from the lawsuit. The city had agreed to pay for the legal

defense of the detective and Callahan pursuant to an

indemnification agreement. Although that agreement was not

produced as part of Cousin's motion for a new trial, White

testified that he had charged the city for his time representing

the detective and Callahan on an hourly basis, at an agreed

rate. White would submit monthly bills to the city for its

review and payment. Over the course of White's representation

of the detective and Callahan, the city paid White more than

$310,000 for his work. White testified that despite being

compensated by the city for representing the detective and

Callahan, he fully recognized that his only clients were the two

officers, and his loyalty toward them was undivided.

In January, 2008, the detective was dismissed from the 9

lawsuit. Because White had been involved in discovery and the

litigation in general, White testified that the city asked him

to represent Callahan. White filed his notice of appearance on

behalf of Callahan on January 29, 2008. Although White was

listed as a lead attorney on the docket, he testified that he

was not "asked to become the lead counsel for Callahan." An

attorney who had been the lead counsel representing Callahan

maintained her position, and she assigned tasks to White. When

White began representing Callahan, he had already left DRW and

was practicing at White & Associates.

The judge noted that the course of the Drumgold litigation

and the nature of the lawsuit indicated that the interests of

the city and the individual defendants were aligned. In the

same way that the city had indemnified the individual defendants

for their legal fees, the city also would be responsible for

paying any judgment or settlement arising from the claims of

misconduct against the individual officers. The judge observed

that even though the city had separate counsel, its liability

was contingent on the liability of the individual defendants.

Further, the judge noted that White had worked closely with the

city while defending both the detective and Callahan, as evinced

by the defendants' multiple joint filings and the conduct of the 10

litigation.5

Concerning the structure and mechanics of the Drumgold

trial, a judge in the United States District Court for the

District of Massachusetts ordered that the trial be divided into

three phases. The first phase would address the liability of

the individual officers, including Callahan. The second phase

would address the liability of the city and the BPD. If the

jury determined that there was a constitutional violation in

either of the first two phases, then the third phase would

address damages. The first phase of the trial took place in

March, 2008, where White participated in defending Callahan.

The jury found that Callahan was liable for one of the civil

rights claims against him, relating to his failure to disclose

that he gave "substantial amounts" of money to a witness for the

Commonwealth. The parties then agreed to conduct the damages

phase of the trial concerning the money Callahan had given to

the witness, but the jury were unable to reach a verdict. On

March 31, 2009, the judge ordered a retrial that was

specifically limited to Callahan's conduct regarding the

witness, which was scheduled for September, 2009.6

5 In October, 2007, counsel for the respective defendants, including White, filed summary judgment motions on behalf of their clients. 6 The scope of BPD Lieutenant Timothy Callahan's retrial was limited to whether he intentionally or recklessly withheld 11

White did not participate in the Callahan retrial because,

at that point, he was representing Cousin, whose criminal trial

also was scheduled for September, 2009. Although White did not

participate in the Callahan retrial, he did not move to withdraw

from the representation or otherwise remove himself from the

case. White testified that he was open to returning to

represent Callahan if there was more work to be done on the

Drumgold litigation after Cousin's case concluded.

b. White's representation of Cousin. White was appointed

to represent Cousin in 2008. Davis, White's former law partner

at DRW, had represented Cousin during his first trial. After

the appeal concerning Cousin's mistrial concluded, Davis

withdrew as Cousin's counsel and recommended that White be

appointed as successor counsel.7 White was no longer working at

DRW at this time and he did not have a referral relationship

with his former firm. Cousin initially indicated that he

intended to retain private counsel for his second trial, but

after meeting White in the Nashua Street jail, Cousin agreed to

evidence from prosecutors about "(1) the fact that [the witness] was housed at a hotel and provided with meals; (2) that there were promises of favorable treatment in [the witness's] pending criminal cases; and (3) that money was given to [the witness]." Drumgold v. Callahan,

(D. Mass. 2011), overruled on another ground,

(1st Cir. 2013). 7 White testified that Davis's recommendation that he take over the Cousin's defense was spurred by a chance encounter between White and Davis, where they talked briefly about the case. 12

have White represent him. Based on the testimony of White and

Cousin at the hearing on the motion for a new trial regarding

this meeting, the judge concluded that White did not provide

sufficient information to Cousin about his representation of a

police officer in the Drumgold case to allow Cousin to make an

informed choice about choosing White as his attorney.

Much of Cousin's claim that White was operating under an

actual conflict of interest depended on the similarities he

alleged between his case and the Drumgold and Cowans cases.

The judge found that on June 29, 2002, the victim was shot

and killed while playing at a park in the Roxbury section of

Boston. The perpetrator fired the fatal shot from a vehicle

that was in the vicinity of the park. Cousin's fingerprints

were recovered from the exterior of that vehicle. Additional

fingerprints were also recovered from the vehicle. Several of

those fingerprints were individualized to two other individuals,

including Cordell McAfee; other fingerprints were not initially

matched to any individual. The same fingerprint analyst who

examined fingerprints in the Cowans case also examined the

fingerprints recovered from the vehicle, and McLaughlin verified

the reports that the analyst generated. Shortly before Cousin's

second trial, Rachel Lemery, another forensic examiner with the

BPD latent fingerprint unit, reviewed those fingerprint reports.

Based on her analysis of other fingerprints recovered from the 13

vehicle in 2002, Lemery was able to match those fingerprints to

Daryl Richardson, a match that the previous analyst had failed

to make before Cousin's first trial.8 It was likely that

Richardson's fingerprint could have been matched in 2002,

because Richardson was convicted of a crime in 1998, and thus

his fingerprints were likely on file.

The Richardson fingerprint match also is applicable to

Cousin's claim that the lead detective in his case, Daniel

Keeler, engaged in misconduct leading to Cousin's conviction.

Specifically, Cousin contended that Keeler had used coercive

techniques during his interrogation of Cordell McAfee, whose

fingerprints had been found inside the vehicle and whose

recorded statement implicated Cousin and his codefendant. The

issue with McAfee's recorded statement was that at least the

first hour was not recorded, and Keeler did not take notes or

generate a report summarizing the interview. Further, at

Cousin's first trial Keeler admitted that, prior to activating

the recording device, McAfee had been shown certain photographic

arrays that included photographs of Cousin and his codefendant

and had not identified either individual. Moreover, McAfee

confessed that he had been in the vehicle during the shooting,

8 Rachel Lemery conducted a review of the fingerprints that the other analyst had analyzed and that McLaughlin had verified after the other analyst and McLaughlin had been removed from the BPD latent fingerprint unit. 14

along with two men named "Daryl" and "Man." Cousin claimed that

Keeler had coerced McAfee into changing his story while off tape

and then recorded only McAfee's inculpatory statements.

2. Discussion. We review the disposition of a motion for

a new trial "to determine whether there has been a significant

error of law or other abuse of discretion. . . . When, as here,

the motion judge did not preside at trial, we defer to that

judge's assessment of the credibility of witnesses at the

hearing on the new trial motion, but we regard ourselves in as

good a position as the motion judge to assess the trial record"

(citations omitted). Commonwealth v. Grace,

(1986). "While we will not disturb a judge's subsidiary

findings which are warranted by the evidence, 'ultimate findings

and conclusions of law, particularly those of constitutional

dimensions, are open for our independent review.'" Commonwealth

v. Walter,

(1986), quoting Commonwealth

v. Mahnke,

(1975), cert. denied,

(1976).

a. Actual conflict of interest. The Commonwealth contends

that the judge erred in concluding that White was burdened by an

actual conflict of interest while representing Cousin.

Specifically, the Commonwealth asserts that White's involvement

in the Drumgold litigation and his former partner's

representation of McLaughlin in the Cowans case, whether 15

considered in isolation or in the aggregate, did not amount to

an actual conflict. We agree. Although Cousin identifies

certain aspects of White's representation that are concerning,

and may implicate a potential conflict of interest, Cousin has

failed to meet his burden of adducing sufficient, nonspeculative

evidence to establish that White was burdened by an actual

conflict of interest.

"Under the Sixth and Fourteenth Amendments to the

Constitution of the United States and art. 12 of the Declaration

of Rights of the Commonwealth, criminal defendants have a right

to the assistance of counsel unimpaired by loyalties to other

clients." Commonwealth v. Mosher,

(2010),

quoting Commonwealth v. Fogarty,

(1995).

This bedrock constitutional guaranty "is intended to prevent a

defendant's attorney from being hampered by contemporaneous

divided loyalties or by having acquired privileged information

which inhibits him in his representation of the defendant."

Commonwealth v. Soffen,

(1979). If a

defendant establishes an actual conflict of interest under art.

12, "he is entitled to a new trial without a further showing; he

need not demonstrate that the conflict adversely affected his

lawyer's performance or resulted in actual prejudice."

See Commonwealth v. Hodge,

(1982).9

No further showing is required because "the effect of the

conflict on the attorney's representation of the defendant is

likely to be pervasive and unpredictable, while the difficulty

of proving it may be substantial, 'particularly as to things

that may have been left not said or not done by counsel.'"

quoting

.

An "actual" or "genuine" conflict of interest exists where

the "independent professional judgment of trial counsel is

impaired, either by his own interests, or by the interests of

another client" (quotations omitted). Commonwealth v. Shraiar,

(1986). An actual conflict infects the

defendant's representation to the point where "prejudice is

'inherent in the situation,' such that no impartial observer

could reasonably conclude that the attorney is able to serve the

defendant with undivided loyalty." Mosher,

-

820, quoting Commonwealth v. Epsom,

(1987).

In determining whether such a conflict exists we look to the

standards set forth in the applicable codes of professional

ethics.

at 820 n.19. See Mass. R. Prof. C. 1.7,

9 It is well established that art. 12 of the Massachusetts Declaration of Rights provides broader protection than the Sixth Amendment to the United States Constitution, which only entitles a defendant to a new trial if an actual conflict and prejudice is established. Compare Commonwealth v. Hodge,

(1982), with Cuyler v. Sullivan,

(1980). 17

as appearing in

(2015).10

Given that representations marred by actual conflicts of

interest exude the egregious and readily apparent divided

loyalty of counsel, the circumstances where we have found an

actual conflict have typically been limited to "[1] where an

attorney represents codefendants with inconsistent or

contradictory lines of defense; [2] where an attorney or an

associate maintains an attorney-client or direct and close

personal relationship with a material prosecution witness; or

[3] where an attorney has business [or personal] reasons for

preferring a verdict unfavorable to the defendant he or she

represents." Mosher,

, quoting Walter,

. Actual conflicts are present in these

situations because they epitomize the facial repugnance of an

attorney's divided loyalty, which places an unmistakable stain

on the attorney-client relationship. See

.

These limited categories also stand in stark contrast to the

multitude of situations that may give rise to a potential

conflict of interest.

. Because a potential conflict

of interest involves a more tenuous conflict, a defendant's

conviction "will not be reversed except upon a showing of

10 In this opinion, we use the 2015 version of Massachusetts Rules of Professional Conduct, even though they were not in effect at the time the events at issue in this case took place, where changes to the rules are not material to our analysis. 18

material prejudice." Shraiar,

.

The defendant carries the burden of proving both the

existence and precise character of the alleged conflict of

interest. See Walter,

; Soffen,

. To satisfy this burden, we require "demonstrative proof

detailing both the existence and the precise character of this

alleged conflict of interest; we will not infer a conflict based

on mere conjecture or speculation." Commonwealth v. Stote,

(2010), quoting Shraiar,

. We

look to the attendant facts and circumstances surrounding the

claimed actual conflict. See Commonwealth v. Martinez,

(1997) (consideration of all facts concerning

defendant's claim of conflict including attorney's relationship

with prosecution witness, ethical problems, and undenied

allegations of broken client confidence). There is no

substitute for meeting this burden other than sufficient,

concrete evidence demonstrating an attorney's divided loyalty

such that prejudice is inherent in the representation. For this

reason, we have never held that a defendant can establish an

actual conflict of interest by cobbling together a collection of

potential conflicts. In determining whether an actual conflict

exists, we do not consider potential conflicts in the aggregate,

even in a representation plagued by potential conflicts; nor do

we accept that potential conflicts have a synergistic effect 19

that can result in the creation of an actual conflict.

The circumstances surrounding Cousin's claim that White had

an actual conflict involve what appear to be, at first glance, a

morass of factually similar cases, obscured connections between

attorney-client relationships, and a thread of disturbing

allegations of police misconduct. Our review of the record

reveals that these connections are in fact discretely

compartmentalized aspects of unrelated cases. Although the

circumstances in this case, as they were developed at the

hearing on the motion for a new trial, do not amount to an

actual conflict, White's representation of Cousin nonetheless

presents troubling issues that may constitute a potential

conflict of interest. However, we do not address the issue of a

potential conflict because the only issue that was considered at

the hearing on the motion for a new trial was whether there was

an actual conflict.11

b. White's involvement in the Drumgold case. The focal

point of the judge's decision that White had an actual conflict

was his involvement in the Drumgold civil rights lawsuit. The

judge construed White's involvement as embodying two problematic

11 On remand, there is an opportunity for additional evidentiary hearings to determine whether there was a potential conflict of interest, and whether Cousin was prejudiced thereby. 20

components: (1) White's overlapping representation of Callahan;12

and (2) White's economic and personal interest in maintaining a

professional relationship with the city, the entity that paid

White's legal fees in the Drumgold case. We review each issue

in turn.

i. The Callahan representation. The judge's conclusion

that there was a substantial risk that White's loyalty may have

been divided between Callahan and Cousin was based on her view

that, "[t]o vigorously defend Cousin, White would necessarily

have to take a position that was not in the interest of his

client Callahan in the Drumgold [F]ederal suit . . . ." This

conclusion assumed that the Drumgold and Cousin cases were

inextricably intertwined to the point where there were competing

interests, such that White would be inhibited from zealously

representing Cousin.

As a threshold matter, in considering an alleged actual

conflict stemming from an attorney's simultaneous representation

of multiple clients who are not codefendants, the presence of an

actual conflict has generally been limited to situations where

the defendant's trial counsel simultaneously represents a

prosecution witness who testifies against the defendant. See

12 The claims against the detective in the Drumgold Federal civil rights lawsuit had been dismissed well before Cousin's second criminal trial. Therefore, the judge did not find, and Cousin does not argue, that White's prior representation of that detective created an actual conflict. 21

Mosher,

, and cases cited. In these

circumstances, the conflict is clear; the prospect of defense

counsel's cross-examination of a prosecution witness who is also

counsel's client almost inevitably "inhibit[s] defense counsel

from conducting vigorous cross-examination of the witness, or

inhibit[s] defense counsel from pursuing certain avenues of

inquiry through that witness, or tempt[s] counsel to disclose

client confidences." Commonwealth v. Patterson,

(2000), S.C.,

(2005), overruled on another

ground by Commonwealth v. Britt,

(2013). In the

present case, Callahan was neither involved in the investigation

of Cousin nor called to testify as a prosecution witness at

Cousin's trial. In this respect, the alleged conflict

concerning White's representation of Callahan in the Drumgold

case falls well outside our established actual conflict

paradigm. See

.13

Cousin endeavors to recast the circumstances of his case

13 In the context of a simultaneous representation:

[W]e have found an actual conflict only where (1) at the time of trial, the defense attorney continued to represent a prosecution witness who furnished material testimony concerning a critical issue in the case against the defendant; or (2) the defense attorney had previously represented a prosecution witness in a matter related to the defendant's criminal case who furnished material testimony concerning a critical issue in the case against the defendant.

Commonwealth v. Mosher,

(2010). 22

and the underlying criminal case in the Drumgold litigation to

create the appearance that these cases are so interrelated that

White's loyalty was inherently divided. Cousin's argument is

that White had an actual conflict in representing a BPD officer

in the homicide division accused of police misconduct in the

course of an investigation and, at the same time, representing a

criminal defendant who sought to impugn the investigatory

conduct of the BPD officers who investigated his case. This

proposition does not establish an actual conflict, although it

may constitute a potential conflict.

In analyzing Cousin's claim that White was saddled by a

conflict of interest due to an overlapping representation, our

analysis is aided by Mass. R. Prof. C. 1.7. See Mosher,

n.19. With limited exceptions, rule 1.7 prohibits

an attorney from representing a client if the representation

involves a concurrent conflict of interest. A concurrent

conflict of interest occurs where "(1) the representation of one

client will be directly adverse to another client; or (2) there

is a significant risk that the representation of one or more

clients will be materially limited by the lawyer's

responsibilities to another client, a former client or a third

person or by a personal interest of the lawyer." Mass. R. Prof.

C. 1.7 (a) (1), (2). Cousin does not contend, and the record

does not indicate, that White's representation of Callahan was 23

directly adverse to Cousin. Accordingly, we need only determine

whether White's overlapping representations of Callahan and

Cousin posed a significant risk that White would be materially

limited in representing Cousin. See Mass. R. Prof. C. 1.7 (a)

(2).

The concern reflected in Mass. R. Prof. C. 1.7 (a) (2) is

that an attorney's duty to another client may materially limit

the defendant's representation by inhibiting attorney's ability

to "consider, recommend or carry out an appropriate course of

action for the client." Mass. R. Prof. C. 1.7 comment 8. To

determine whether there is a significant risk that the attorney

is materially limited, "[t]he critical questions are the

likelihood that a difference in interests will eventuate and, if

it does, whether it will materially interfere with the lawyer's

independent professional judgment in considering alternatives or

foreclose courses of action that reasonably should be pursued on

behalf of the client."

An attorney may be materially

limited "by having acquired privileged information which

inhibits him in his representation of the defendant." Soffen,

. See Mass. R. Prof. C. 1.7.

The Drumgold and Cousin criminal cases involve the tragic

shooting deaths of children. The BPD homicide division

investigated both cases. Each case also involved claims of

misconduct against the BPD officers who investigated the 24

killings, and both cases received significant media coverage.

Described in these broad brush strokes, Cousin advances the

judge's theory that a zealous representation of Cousin required

an attack on the BPD homicide division, which was inconsistent

with Callahan's interests, a BPD officer accused of misconduct

in an unrelated civil case. Under the lens with which we

analyze the claimed actual conflict, however, the differences

between the cases are significantly more telling than their

apparent similarities.

The record before this court establishes that Callahan was

not involved in the investigation or prosecution of Cousin.

Moreover, there is no connection between the allegations of

police misconduct in those cases. Cousin claims that Detective

Keeler conducted a coercive interrogation of McAfee, the

individual who eventually implicated Cousin in the shooting and,

as detailed above, failed to reveal exculpatory evidence that

McAfee provided. Beyond Detective Keeler's conduct, Cousin also

points to the analyst's failure to match fingerprints recovered

from the vehicle to Richardson, and McLaughlin's verification of

that faulty report. The failure to originally individualize the

fingerprints recovered from the vehicle to Richardson precluded

Cousin from exploring a viable avenue in his defense.

When White was representing Cousin at his retrial in

September, 2009, the claims against Callahan in the Drumgold 25

case had been significantly narrowed. A jury already had

determined that Callahan was not liable for all civil rights

claims other than failing to disclose exculpatory material

concerning a key witness. The Federal District Court judge

limited the scope of the Callahan retrial to whether Callahan

failed to disclose the fact that the witness was housed in a

hotel and provided with meals, that there was promises of

favorable treatment in the witness's pending criminal cases and

that money was given to him. Setting aside the fact that the

Drumgold case and Cousin's criminal case were unrelated legal

actions, Callahan was clearly not facing misconduct claims that

remotely resembled Cousin's claims regarding Keeler.

Because Cousin's case and the Drumgold case are

unmistakably separate legal actions, involving different BPD

officers investigating the killings, and distinguishable claims

of police misconduct, a vigorous attack on the police conduct in

Cousin's defense would not constitute an attack on all members

of BPD's homicide unit.14 Moreover, Cousin has failed to produce

14 Were we to accept Cousin's premise, the natural implication would be a prohibition on attorneys representing a police officer in a civil case accused of misconduct and, at the same time, representing a criminal defendant who had been investigated by a different member of the same police department, even if the cases were unrelated and there was no connection between the officer-defendant in the civil case and the other members of that police department who investigated the defendant's case. This would be an overbroad and imprecise application of our conflict of interest law that would 26

any evidence from the record suggesting that vigorously

defending Cousin would be inconsistent with representing

Callahan. We are further persuaded that, based on this record,

White's representation of Callahan did not create an actual

conflict of interest because there is no indication that White

acquired confidential information from Callahan that materially

limited his representation of Cousin. See Soffen,

. See also Mass. R. Prof. C. 1.7.

ii. White's economic and personal interests. The judge

also concluded that White had an actual conflict of interest

stemming from his economic and personal interest in the Drumgold

litigation. In the judge's view, "White had an economic or

personal interest, at the time he represented Cousin, in

remaining on good terms with the BPD, thus creating a

substantial risk that the manner in which he represented Cousin

could materially and adversely be affected." Beyond White's

financial compensation for his representation of the individual

officers in the Drumgold case, the judge emphasized that, "[a]s

the entity that paid the bills, the city was essentially White's

largest paying client in the year leading up to Cousin's second

trial." On appeal, Cousin endorses this reasoning and further

asserts that because the city was White's client, White was

undoubtedly impact the law practice of many attorneys and limit the ability of police officers to hire the attorney of their choice. 27

restrained from vigorously challenging the investigation in his

case because of his professional obligations to the city.

Much like an actual conflict arising from the competing

interests of clients, an attorney's own interests can impair his

or her independent professional judgment to the point of causing

an actual conflict. See Commonwealth v. Perkins,

(2008); Mass. R. Prof. C. 1.7 (a) (2) & comment 1. An

attorney's personal interest can amount to an actual conflict of

interest in a variety of situations. See, e.g., Hodge,

(defense counsel's financial incentive "in not

antagonizing his firm's client"); Commonwealth v. Crocken,

(2000) ("A lawyer's personal interests surely

include his interest in maintaining amicable relations with his

relatives, his spouse, and anyone with whom he is comparably

intimate"). But see Commonwealth v. Milley,

(2006) (claim that attorney was complicit in hiring

scheme to ensure he continued to receive appointments from

clerk-magistrate was too speculative and did not show actual

conflict with duty to represent defendant).

In the context of an attorney's economic interest in a

representation, we have held that an actual conflict exists

"where an attorney has business reasons for preferring a verdict

unfavorable to the defendant he or she represents" (citation

omitted). Mosher,

. However, an attorney's 28

financial interest in being compensated for providing legal

representation, by itself, is generally too attenuated to

constitute an actual conflict. We have held that an actual

conflict can materialize out of an attorney's financial interest

in a representation combined with that attorney's duty of

loyalty to another client or a third person. For example, in

Hodge,

, trial counsel was burdened by an actual

conflict where he was faced with cross-examining a prosecution

witness who was, at that time, represented by that attorney's

law firm. We held that trial counsel was burdened by an actual

conflict caused by his "financial interest in not antagonizing

his firm's client by a vigorous cross-examination designed to

discredit him, and his duty to consider only [the defendant's]

best interest in deciding whether and how to cross-examine" the

firm's client.

The actual conflict in Hodge did not depend

exclusively on trial counsel's financial interest in the

representation, but the significant risk that his loyalty would

be inherently divided in cross-examining his firm's client. See

Cousin has failed to adduce any facts to support his claim

that White had an actual conflict because the city paid him to

represent Callahan and the detective in the Drumgold case. The

fact that White was paid more than $310,000 for his

representation, without more, does not provide a basis to 29

conclude that there was an actual conflict of interest.

Furthermore, our conclusion is not altered by White's testimony

indicating that he was open to returning to defend Callahan

after Cousin's trial concluded, where this prospect, by itself,

is also too speculative to conclude that White's personal

interest caused him to have a divided loyalty, amounting to an

actual conflict. Although White's prospect of future work for

the city would certainly be relevant in analyzing a potential

conflict claim, without more it is too tangential to constitute

an actual conflict.

Cousin's claim that White had an actual conflict because

the city was essentially his client is equally unsupported by

the record. Significantly, Cousin relies on speculation and

conjecture to support his allegation that White was constrained

from vigorously defending him through an attack on the alleged

police misconduct in Cousin's defense because it could have

exposed the BPD, and ultimately the city, to greater liability.15

15 Cousin contends that White admitted during the hearing on the motion for a new trial that he had a conflict of interest. This alleged acknowledgement occurred during an exchange between the judge and White, following White's testimony that he developed a practice of telling all of his criminal clients that he represented a police officer in the Drumgold case. The judge inquired, "Because it could be perceived as a conflict of interest?" White replied that "[i]t would certainly be perceived as a conflict of interest." The context of this exchange, in light of White's multiple repudiations about having an actual conflict, belie Cousin's contention that White conceded the existence of an actual conflict. 30

In search of support for this proposition, Cousin relies on

United States v. Schwarz,

(2d Cir. 2002).

Schwarz involved a police officer who had been charged with

assault.

. In that case, the defendant's law firm had

entered into a two-year, $10 million retainer agreement with the

Policeman's Benevolent Association (PBA) to represent "all

police officers in administrative, disciplinary, and criminal

matters as well as to provide them with civil legal

representation."

. The United States Court of Appeals

for the Second Circuit determined that at the point the

individual who had been assaulted filed a civil lawsuit against

the PBA, an actual conflict arose because the PBA's interests

diverged from those of the defendant.

. There was an

actual conflict at that point because the PBA's interest in

limiting its liability diverged from the defendant's interest in

advancing a defense in which he would implicate another police

officer in the assault.

Defense counsel's zealous

representation of the defendant in the criminal case could have

hampered the PBA's defense in the civil suit and, as a result,

the defendant's counsel faced an actual conflict between his

representation of the defendant, on the one hand, and his

professional obligation to the PBA as well as his own personal

and financial interest on the other.

. Cf.

Commonwealth v. Wooldridge,

, 167-168 31

(1985) (firm's contract with police association imposed

continuing professional duties on firm's lawyers to former

clients who were members of police association).

The circumstances in Schwarz, particularly the existence of

an agreement that the attorneys in Schwarz represented the PBA

directly, highlight the infirmities in Cousin's claim that White

had an actual conflict due to his relationship with the city.

There is no indication that White represented the city, a police

union, or anyone other than Murphy and Callahan in the Drumgold

case. Indeed, White testified at the hearing on the motion for

a new trial that he only represented Murphy and Callahan in the

Drumgold litigation. Moreover, White testified that he

understood his loyalty was exclusively to the detective and

Callahan.16 Although White's agreement with the city to

represent the individual officers was not produced at the

hearing on the motion for a new trial, Cousin has failed to put

forth evidence to controvert White's testimony that he only

represented the detective and Callahan. Contrast Schwarz,

(attorney's firm had $10 million retainer agreement

with PBA to represent all police officers in variety of legal

proceedings).

16 Although White's alleged personal interest in remaining on good terms with the city is certainly a relevant consideration in a potential conflict analysis, it is too ephemeral to amount to an actual conflict. 32

Similarly, there is no suggestion in the record that White

or the city's conduct in the Drumgold case expanded the scope of

White's representation beyond the detective and Callahan.17 The

record is silent concerning what, if any, direction or control

the city exerted over White in the course of his involvement in

the Drumgold case. Significantly, no information was developed

concerning whether White had acquired confidential information

about the city that may have been material to Cousin's defense,

particularly his allegations of police misconduct. Had White

acquired confidential information about the city or the BPD that

would have materially limited his representation of Cousin and

created a concurrent conflict, that likely would have

constituted an actual conflict. See Soffen,

-

438. See also Mass. R. Prof. C. 1.7. Although this may be a

compelling avenue of exploration concerning a claim that there

was a potential conflict, based on the record before this court,

it does not amount to an actual conflict. This conclusion

applies equally to the premise that White may have been less

17 Cousin has failed to establish that there was an implied attorney-client relationship between White and the city. See Bays v. Theran,

(1994) ("attorney-client relationship may be implied when [1] a person seeks advice or assistance from an attorney, [2] the advice or assistance sought pertains to matters within the attorney's professional competence, and [3] the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance" [quotations and citation omitted]). Although the record before this court is undeveloped in this respect, it could be an area of relevant consideration in a potential conflict analysis. 33

than vigorous in defending Cousin because White wanted to

maintain an amicable relationship with the city and not expose

the city to greater liability in the Drumgold case. It is clear

from the dearth of information in the record that Cousin has

failed to carry his burden of proving that White had an actual

conflict as a result of his involvement in the Drumgold

litigation or his relationship to the city.

c. Robinson's representation of McLaughlin. In

determining that White was burdened by an actual conflict, the

judge considered, at least in part, Robinson's representation of

McLaughlin, one of the fingerprint analysts in Cousin's case.

Robinson defended McLaughlin, in the Cowans case, while White

and Robinson were law partners at DRW, against a claim that

McLaughlin had concealed an erroneous fingerprint match that had

implicated Cowans in a shooting. Cousin contends that White

continued to owe a duty of loyalty to his former partner's past

client that prohibited White from representing Cousin, thus

amounting to an actual conflict. We discern no such conflict.

At the outset, it is uncontroverted that neither White nor

Robinson was representing McLaughlin at the time of Cousin's

trial. Robinson's representation of McLaughlin ended in

September, 2007, when the Cowans case settled. White left DRW

in 2007 and began his own firm, White & Associates. He filed

his notice of appearance on behalf of Cousin approximately one 34

year later, on October 22, 2008. Significantly, McLaughlin was

never identified as a witness for the Commonwealth and she did

not testify at Cousin's first or second trials, which began in

September, 2009. White never confronted the prospect of cross-

examining his former partner's past client in defending Cousin.

Even were we to assume that McLaughlin may have testified

as a prosecution witness against Cousin, despite her no longer

being a member of the latent fingerprint unit, we have generally

held that terminating that conflicting representation prior to

the defendant's trial "obviat[es] the risk of simultaneous

representation." Martinez,

. Because

Robinson's representation of McLaughlin ended approximately two

years before Cousin's trial, White was not burdened by an actual

conflict. See Mosher,

(no actual conflict

resulted from representation terminated one month prior to

trial); Patterson,

(no actual conflict

resulted from previously terminated representation); Fogarty,

(no conflict where defense counsel's

associate ended representation of prosecution witness prior to

defendant's retaining defense counsel); Commonwealth v. Smith,

(1973) (no conflict where defense

counsel's representation of prosecution witness ended before

defendant's trial commenced).

The fact that neither White nor Robinson was representing 35

McLaughlin at the time of Cousin's trial does not end our

inquiry concerning whether White had a surviving duty of loyalty

to McLaughlin that would have impeded him from vigorously

representing Cousin. To resolve this issue, we are guided by

Mass. R. Prof. C. 1.9, as appearing in

(2015),

which traces the contours of an attorney's duty of loyalty to

former clients. Rule 1.9 prohibits an attorney from

representing clients whose interests are adverse to a former

client, particularly where that former client's confidential

information may be at issue in the subsequent representation.

See Mass. R. Prof. C. 1.9 (a).

An attorney who leaves a law firm to take a position at

another law firm may have a continuing duty of loyalty to his or

her former firm's past clients. Mass. R. Prof. C. 1.9 (b).

That attorney is prohibited from representing a person in the

same or a substantially related matter in which their former

firm had represented a client where (1) that person's interests

are materially adverse to the former client, and (2) the

attorney acquired protected confidential information from the

former client that is material to that person's case. Mass. R.

Prof. C. 1.9 (b) (1), (2). This prohibition "operates to

disqualify the lawyer only when the lawyer involved has actual

knowledge of information protected by Rules 1.6 and 1.9(c)."

Mass. R. Prof. C. 1.9 comment 5. If the attorney did not 36

acquire knowledge about the former firm's client, and that

attorney joins another firm, "neither the lawyer individually

nor the second firm is disqualified from representing another

client in the same or a related matter even though the interests

of the two clients conflict."

Although McLaughlin was a past client of White's prior law

firm, White testified at the hearing on the motion for a new

trial that he was uninvolved in Robinson's representation of

McLaughlin, and he did not acquire any confidential information

about McLaughlin. There is nothing in the record that

contradicts White's testimony that the partners at DRW generally

handled their cases independently. To the extent that White and

his law partners at DRW discussed cases generally, the record is

insufficiently developed to support an inference that general

discussion about cases indicates that White acquired

confidential information about McLaughlin from Robinson.18 There

was no indication that White was restrained from challenging

McLaughlin's work as a fingerprint analyst in Cousin's case.19

18 This type of informal discussion of cases, depending on their content and whether confidential information was discussed, would be a relevant inquiry in a potential conflict analysis. 19 The difference between the allegations of misconduct against McLaughlin in this case compared to the Cowans case is also significant. In the Cowans case, McLaughlin was accused of concealing the discovery that a fingerprint recovered from the crime scene was erroneously matched to Cowans, thus implicating 37

Furthermore, a telephone conversation that Robinson

coordinated between White and McLaughlin does not change our

view that there is insufficient evidence to establish an actual

conflict on these grounds. White testified that in the course

of preparing for Cousin's trial, and in response to the report

that the originally analyzed and unmatched fingerprints actually

had a match, White attempted to contact McLaughlin. Robinson

facilitated the telephone call between White and McLaughlin

after White mentioned, in the course of having lunch with

Robinson, that he was preparing for Cousin's criminal trial and

he had been unable to contact McLaughlin. White spoke with

McLaughlin in private, and Robinson was not present for the

conversation. Significantly, White testified that he did not

acquire any confidential information about McLaughlin during

that telephone call, and there is nothing in the record to

indicate that White gleaned any confidential information during

that conversation, which he described as brief and "not . . .

terribly productive." Accordingly, Cousin fails to set forth

any information suggesting that White acquired confidential

an apparently innocent individual in a crime. Here, the evidence indicates that McLaughlin verified another analyst's fingerprint analysis, in which that analyst evidently failed to individualize a latent print to an individual who was presumably in the fingerprint database. With no view on whether this constituted negligence, misconduct, or neither, it is nonetheless clear here that the allegations against McLaughlin in the two cases have no connection that would inhibit White from attacking McLaughlin's work in defending Cousin. 38

information, either before or during this telephone call, that

triggers the prohibitions prescribed in rule 1.9 (b). The mere

fact that Robinson put White in contact with her former client

in no way subverts that proposition.20

3. Conclusion. Based on the foregoing, we discern that

there was insufficient evidence to establish that White was

burdened by an actual conflict. We vacate the judge's decision

granting Cousin's motion for a new trial and remand the case to

the Superior Court for further evidentiary hearings on whether

Cousin was prejudiced by potential conflicts of interest.

So ordered.

20 The record is equally devoid of evidence that Robinson's representation of McLaughlin arose from an underlying, contractual referral relationship between the city or the Boston police patrolmen's union and Robinson and White. This is not altered by White's brief testimony indicating that Robinson knew the attorney for the patrolmen's union.