UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 91-4606 _______________________

BETTY LOU BEETS,

Petitioner-Appellee,

versus

WAYNE SCOTT, Director Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas _________________________________________________________________

(September 22, 1995)

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.*

EDITH H. JONES, Circuit Judge:

The issue that provoked en banc rehearing of this capital

murder case is whether a habeas corpus petitioner was deprived of

her Sixth Amendment right to effective assistance of counsel

because her attorney committed arguable ethical violations when he

obtained a contract for media rights to her story and failed to

withdraw and testify as a defense witness. More precisely, the

* Judges Stewart and Benavides were not members of the Court when this case was argued and have elected not to participate. Judge Parker is recused. court has divided over the issue whether these facts should be

measured by the Strickland standard for an attorney's deficient

performance1 or by the Cuyler standard adopted for the special case

of attorney conflicts in cases of multiple client representation.2

On reconsideration, we approve Judge Higginbotham's analysis in a

concurrence to the panel opinion that Strickland more

appropriately gauges an attorney's conflict of interest that

springs not from multiple client representation but from a conflict

between the attorney's personal interest and that of his client.

Judged under Strickland, the attorney's actions in this case were

neither deficient nor prejudicial. Alternatively, however, even if

the Cuyler standard applies, we find that only a potential and not

an actual conflict arose between Beets and her lawyer. On either

ground, the writ must be denied.3

Because our analysis of the Sixth Amendment issue depends

upon a thorough recapitulation of the history of the case, the

background is described with more than usual detail.

I. BACKGROUND

A. Summary of Proceedings

On October 11, 1985, petitioner Betty Lou Beets (Beets)

was convicted of the capital murder of her fifth husband, Jimmy Don

1. Strickland v. Washington,

,

,

(1984).

2. Cuyler v. Sullivan,

,

,

(1980).

3. The other issues dealt with in the panel opinion were not reheard by the court en banc and their disposition is approved.

2 Beets (Jimmy Don). She was sentenced to death. Beets appealed

unsuccessfully to the Texas Court of Criminal Appeals, see Beets v.

State,

(Tex. Crim. App. 1988), cert denied,

,

,

(1989). Her request for a

state writ of habeas corpus having been denied, Beets sought

similar relief in federal court.

. The district

court granted the writ on finding that Beets's defense counsel at

trial was a material witness who should have resigned to testify

rather than represent her. On appeal, this court rejected Beets's

claims that her attorney labored under an actual conflict of

interest stemming from either his status as a witness or the media

rights contract. The panel majority applied the Cuyler standard to

the case and, while Judge Higginbotham agreed with the conclusion

of no actual conflict, he maintained in a separate opinion that

Strickland should be applied instead.

B. The Murder Case

Beets's fifth husband, Jimmy Don, disappeared on

August 6, 1983. See Beets v. State,

(Tex. Crim.

App. 1988) (lengthy recitation of the evidence). His fishing boat

was found drifting on Lake Athens, Texas, suggesting that he had

drowned.4 More than a year later, a house that was Jimmy Don's

separate property before his death was destroyed by fire. When the

insurer, suspecting arson, refused Beets's claim for the loss,

4. Beets's son, Robbie, admitted at trial that he had set the boat adrift to give the appearance that Jimmy Don had fallen overboard. Jimmy Don's heart pills had been spilled on the floor of the boat to make his disappearance seem accidental.

3 Beets sought the counsel of E. Ray Andrews, an attorney who had

represented Beets since 1981 or '82. During their discussions, it

was decided that Andrews would pursue any of Jimmy Don's insurance

or pension benefits to which Beets might be entitled.

Beets and Andrews entered into a contingent fee

arrangement covering these matters. Andrews preliminarily

determined that certain benefits existed and then sought the

assistance of two attorneys more experienced in collecting such

benefits. Andrews arranged a meeting in his office with Beets and

Randell Roberts, one of the other attorneys. Roberts agreed to

associate his firm in the matter. Roberts's brother, attorney

Bruce Roberts, eventually took over responsibility for Beets's

claims. Through his efforts, Jimmy Don's former employer, the City

of Dallas Fire Department, agreed to provide benefits to Beets.

Before Beets received the first check from the Fire

Department, she was arrested on June 8, 1985, and was charged with

the capital murder of Jimmy Don. Beets was charged with shooting

and killing her husband and, with the assistance of her son, Robbie

Branson, burying him in a sleeping bag under a planter in her front

yard.5 The body of Beets's fourth husband, Doyle Wayne Barker, was

also found in a sleeping bag buried in the back yard underneath a

patio upon which a storage shed had been erected. Beets had also

shot another former husband, Bill Lane, although he survived.

5. The planter was also described as a "wishing-well." Beets v. State, 767 S.W. at 739.

4 Andrews, described by the federal district judge as a

"competent and tenacious criminal defense lawyer," agreed to

represent Beets on the capital murder charge. The case generated

significant local and national media interest. On October 8, just

after Beets's trial commenced, she signed a contract transferring

all literary and media rights in her case to Andrews's son.

Andrews testified at the federal habeas hearing that this contract

was signed after negotiations fell through to obtain his fee from

Beets's children. The media rights contract later apparently

became the subject of a State Bar grievance proceeding, but Andrews

was not disciplined for it.

The trial judge did not become aware of the media rights

contract during trial, although he learned of it three months later

during a hearing on Beets's motion to appoint counsel for appeal

when the prosecutor asked Beets if she had signed over the book

rights to her case to Andrews's son. The judge did not inquire

whether Beets was willing to waive her Sixth Amendment right to

conflict-free counsel.

Beets was convicted of murder for remuneration and the

promise of remuneration on the theory that she killed her husband

in order to obtain his insurance and pension benefits and his

estate. See

(a)(3) (Vernon Supp.

1991). The Texas Court of Criminal Appeals later held that "a

person commits a murder for remuneration . . . where the actor

kills a victim in order to receive a benefit or financial

settlement paid upon the death of the victim, such as proceeds of

5 insurance and retirement benefits as in the present case." Beets

v. State,

. In other words, the state was

required to show that Beets had the specific intent to receive

remuneration in the form of insurance or pension benefits or other

property upon the death of Jimmy Don.

Andrews defended Beets primarily on the ground that her

son Robbie actually murdered Jimmy Don and, second, by disputing

that the murder was for remuneration. Andrews, his co-counsel

Hargrave, the Texas Court of Criminal Appeals and the federal

district court all concur that this was the order of Andrews's

strategy. It was a good strategy, as the federal district judge

explained:

The court has carefully reviewed the record. It is apparent that the defense counsel, E. Ray Andrews, fought for his client to the full extent of his ability and energy. This case was vigorously prosecuted and vigorously defended before a careful and learned trial judge. Andrews put forth the only evidence available to him that had evidence that a jury could conclude had scientific corroboration -- the results of the pathology report which raised the issue of an altercation and head injury unrelated to the gun shot. Such evidence, if believed, would be consistent with the defense position that Jimmy Don Beets was killed by petitioner's son, Robert F. Branson, II.

Andrews strenuously cross-examined Robbie Branson, one of

Beets's children, who was at the time of the offense a teenager

living with her and Jimmy Don. Several times, he had quarrelled

heatedly with his stepfather, and he had damaged some of Jimmy

Don's property and taken money from him. Robbie had a criminal

record for burglary and was accused of trying to pass stolen

checks. Although Robbie denied killing his stepfather, Beets

6 testified that Robbie and Jimmy Don fought on the night of the

murder and, when she was in another room, she heard a shot fired in

the bedroom. She found Jimmy Don dead on the floor. Beets said

she helped Robbie dispose of the body. Together, they planned the

boating accident ruse, and Beets went off to shop in Dallas with

her daughter the next day.

Beets denied being the murderer. She said she loved

Jimmy Don and he had treated her well.

Supporting the theory that Robbie committed the murder,

the forensic pathologist, Dr. Petty, testified that Jimmy Don's

fractured cheek bone, otherwise unexplainable by his head wound

from the pistol, could have been inflicted in a fight with another

man.

Critical to the success of the non-triggerperson defense

was Beets's motion in limine to prevent the state from introducing

evidence of Barker's body, which had been dug up at the same time

as Jimmy Don's. The state trial judge initially granted this

motion but changed his mind near the end of trial. This change

made it possible for Beets's daughter Shirley Stegner to testify

for the State that Beets had killed Barker in 1981 and obtained

Shirley's help in burying him in the back yard.6 Shirley was

vulnerable as a witness because of her own criminal exposure in

Barker's murder and her unsavory personal background. Andrews made

the most of her impeachment. Nevertheless, the evidence of

6. The introduction of this evidence was upheld by the state appellate court. Beets v. State,

-41.

7 Barker's violent death was devastating to the defense, as Andrews

and Hargrave both acknowledged at the federal habeas hearing.

Shirley Stegner's testimony about her mother's motive for

killing Barker also enhanced the state's proof of motive in Jimmy

Don's case. Shirley testified that her mother told her that

"she was going to kill Doyle Wayne Barker" because "she couldn't put up with any more of him beating her and that she didn't want him around anymore."

Her mother also told her that

"the trailer [house] was in his name and she was just a co-signer on it and that if they were to get a divorce, that he would end up with the trailer [house]."

Beets v. State,

.

The State adduced other evidence of Beets's attempts to

enrich herself at the expense of Jimmy Don's life or his estate.

Less than six months before he died, Betty Lou applied to J.C.

Penney for a $10,000 life insurance policy in Jimmy Don's name,

which she forged on the application. She directed all further

correspondence on the policy to a daughter's home address.

Coincidentally, a relative of her husband was then employed at J.C.

Penney's and noticed some discrepancies on the paperwork, which she

brought to Jimmy Don's attention. He promptly cancelled the

policy.

After Jimmy Don's disappearance, Beets forged his

signature on the title certificate of the boat, which had been his

separate property, and sold it for $3,250. She also tried to sell

a house that had been his separate property. As has been related,

8 the house mysteriously burned down, so she sought out Andrews to

collect the fire insurance benefits.

Also important to the State was the testimony of Denny

Burris, a chaplain with the City of Dallas Fire Department. Burris

met with Beets several times during the first few weeks after Jimmy

Don was reported missing:

Burris testified that [Beets] made inquiry of him whether she was covered by any insurance policies that [Jimmy Don] might have had with the City of Dallas, as well as inquiring whether she would be entitled to receive any pension benefits that [Jimmy Don] might have accumulated. [Beets] did not profess to Burris that she had any specific knowledge of either insurance coverage on [Jimmy Don]'s life or any pension benefits [Jimmy Don] might have accumulated. Burris told her that he did not know but would check into the matter and report back to her. Burris did check and learned that [Jimmy Don]'s life was insured with the total amount of insurance being approximately $110,000. He also learned that [Beets] would be entitled to receive approximately $1,200 each month from [Jimmy Don]'s pension benefits. Burris advised [Beets] of his findings, and also told her that according to the City Attorney of Dallas that because [Jimmy Don]'s body had not been recovered there would be a seven year waiting period before any payment of insurance proceeds could occur.

Beets v. State,

. Burris's testimony implied

that right after Jimmy Don's disappearance, the "bereaved" wife was

inquiring about his death benefits. This testimony could be taken

by the jury to mean that she was already greedy or truly ignorant

about them at that time. In any event, Beets had to assume from

Burris's information that she must wait several years before

collecting them.

Andrews's strategy to negate the specific intent element

of the capital crime was to introduce Beets's testimony that she

was unaware of any potential insurance or pension benefits

9 available to her at the time she approached Andrews, eighteen

months after Jimmy Don's "disappearance," for assistance in

pursuing her fire damage claim. Beets testified that Andrews

suggested that she should pursue Jimmy Don's life insurance or

pension benefits but that she never felt entitled to them.

Bruce Roberts testified as part of the strategy that

Beets seemed interested in no other insurance claims than that

pertaining to the burned house. Beets brought Roberts what looked

like part of an insurance policy, and she mentioned pension

benefits, but she gave Roberts no other information helpful to

pursuing the claims. To Roberts, Beets appeared not to know

anything about the amount or nature of any death benefits to which

she might be entitled. Roberts confirmed that she never received

any money on her claims.

In closing argument, Andrews informed the jury that it

was his idea to pursue Jimmy Don's benefits for Beets. His

statement was not objected to.

The jury disbelieved Beets's non-triggerperson defense

and her denial of a pecuniary motive and so convicted her of

capital murder. The state court of criminal appeals affirmed.

C. Post-Conviction Proceedings

In the state habeas corpus proceedings, Beets,

represented by new counsel, filed a voluminous petition but raised

her Sixth Amendment conflict-of-interest claim only as to Andrews's

media rights contract -- and without mentioning Andrews's status as

a witness -- as claim number 34(h) on page 70 of her pleading.

10 Andrews filed an affidavit that the media rights contract did not

adversely affect his representation of Beets. The trial court,

agreeing with Andrews, stated:

(4) As to Petitioner's ineffective counsel claim, the Court finds from personal recollection of the trial that this case was hotly contested by Petitioner's trial counsel and that Petitioner was vigorously defended at every stage of the trial proceedings by her counsel. Petitioner's grant of "book rights" to the son of her counsel had no effect on the strategy of defense counsel. Counsel for Petitioner made an adequate factual investigation of the case.

The conduct of Petitioner's counsel at trial date did not so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The conduct of petitioner's counsel during trial was not deficient and he presented all evidence then existing to support the defense of his client.

The court's denial of relief was affirmed by the Texas Court of

Criminal Appeals.

Beets's federal habeas petition alleged, among many other

issues, that Andrews's failure to withdraw and offer direct

testimony that Beets was ignorant of potential death benefits

constituted an actual conflict of interest with his client. Beets

further alleged that the media rights contract gave rise to a

separate conflict of interest.

The district court, after holding an evidentiary

hearing,7 decided that Andrews's failure to withdraw and testify

7. It is not clear that Beets was actually entitled to an evidentiary hearing. If Beets's case arose today it is even more doubtful that she would have been so entitled under the cause-and-prejudice standard announced in Keeney v. Tamayo-Reyes,

,

,

(1992). Under Keeney, Beets would be entitled to an evidentiary hearing only if she could "show cause for [her] failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure."

, 112

11 resulted in an actual conflict of interest that adversely affected

his representation of Beets. Granting the writ of habeas corpus on

this basis, the court found:

Andrews obviously should have known of his dual status as witness and advocate prior to trial. Andrews' dual status should have also been apparent to both the judge and district attorney as the trial unfolded. The Court is persuaded that the conflict never occurred to any of the participants. The testimony that Andrews could have provided as an independent witness related to an essential element of the State's charge of murder for remuneration.

The court also concluded that the media rights contract, factually

intertwined with the failure to withdraw conflict, constituted a

separate conflict of interest, but he expressly found that it did

not adversely affect Andrews's performance. In reaching his

decision on the Sixth Amendment issue, the district court applied

the test set out in Cuyler v.

.

II. DISCUSSION

Risen from obscurity in her state habeas petition to the

dispositive issue in federal district court are Beets's complaints

that her lawyer's ethical violations, breaches of the duty of

loyalty to his client, violated the Sixth Amendment. No doubt

Beets's constitutional right to effective counsel demands diligent

protection. The primary question before us, however, is the

applicable standard of protection.

S.Ct. at 1721. Moreover, Beets's failure to develop her claims in state court would be excused and a hearing mandated only if she could "show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Id.; cf. McCleskey v. Zant,

,

,

(1991); Murray v. Carrier,

,

,

(1986).

12 The Supreme Court has determined that in most Sixth

Amendment ineffectiveness cases, the defendant must show that

counsel's errors fell below an objective standard of reasonableness

and prejudiced his case, which ordinarily means establishing a

reasonable probability that counsel's errors changed the result of

the proceeding. Strickland,

,

. In some cases, however, prejudice is presumed if the

defendant shows that an actual conflict of interest adversely

affected his lawyer's performance. Cuyler,

,

. The precise nature of Cuyler's "actual conflict"

and "adverse effect" elements is rather vague, but the Cuyler test

sets a lower threshold for reversal of a criminal conviction than

does Strickland. The Supreme Court explained the reason for this

distinction as follows:

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice [than a case in which the defendant effectively had no counsel]. In Cuyler v. Sullivan,

,

, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed. R. Crim. Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, supra,

,

(footnote omitted).

13 Strickland,

,

.

The position adopted by this court en banc may be easily

summarized. Strickland offers a superior framework for addressing

attorney conflicts outside the multiple or serial client context.8

First, Cuyler, like all the other Supreme Court cases that have

discussed a lawyer's conflict of interest, solely concerned the

representation of multiple clients. The Supreme Court has not

expanded Cuyler's presumed prejudice standard beyond cases

involving multiple representation. Although lower courts have

generally extended Cuyler to "duty of loyalty" cases, their

decisions have not grappled with the difficulties inherent in that

position, and their reasoning has been inconsistent. See note 10,

infra. Second, the demands and reasoning of legal ethics militate

against treating multiple representation cases like those in which

the lawyer's self-interest is pitted against the duty of loyalty to

his client.9 Finally, applying Cuyler in cases arising from a

lawyer's conflict of interest between himself and his client

ultimately undermines the uniformity and simplicity of Strickland.

Each of these propositions will be discussed.

8. Cuyler has been routinely applied to cases in which an alleged attorney conflict resulted from serial representation of criminal defendants as well as simultaneous multiple representation. See, e.g., Burger v. Kemp,

,

,

(1987). For convenience, we denominate both of these situations as "multiple representation."

9. See Garcia v. Bunnell,

, 1198 n.4 (9th Cir. 1994), cert. denied,

,

(1995) ("It is not logically necessary that the approach of these [multiple representation] cases also apply to conflicts between a defendant's and the attorney's own personal interests").

14 A. Cuyler and Related Supreme Court Cases

Although the federal circuit courts have unblinkingly

applied Cuyler's "actual conflict" and "adverse effect" standards

to all kinds of alleged attorney ethical conflicts,10 a careful

reading of the Supreme Court cases belies this expansiveness.

Neither Cuyler nor its progeny strayed beyond the ethical problems

of multiple representation. One cannot read Cuyler to analyze

conflicts of interest in a context broader than that of multiple

client representation. The case came to the Supreme Court raising

10. See, e.g., United States v. Hanoum,

(9th Cir. 1994), cert. denied,

(1995) (appeal dismissed without prejudice to bring again with more facts supporting allegation that attorney was having sex with defendant's wife and therefore had incentive to make sure defendant was found guilty); Winkler v. Keane,

(2nd Cir. 1993), cert. denied,

,

(1994) (no adverse effect found in criminal defense contingency fee arrangement); United States v. Sayan,

(D.C. Cir. 1992) (no actual conflict when attorney who was appointed one week before trial failed to request a continuance allegedly because he was afraid of adverse consequences to him and his firm if he filed such a motion); United States v. Michaud,

(1st Cir. 1991) (no Sixth Amendment violation when defense attorney in tax case taught classes to IRS agents on how to detect tax fraud); United States v. Salerno,

(2nd Cir.), cert. denied,

,

,

(1989) (no actual conflict or adverse effect when attorney and his firm were being investigated by the government and were allegedly unusually cooperative with the government in defendant's case); United States v. Horton,

(7th Cir. 1988) (no actual conflict and no adverse effect when attorney was "serious" candidate for U.S. Attorney during his representation of the defendant); United States v. McLain,

(11th Cir. 1987) (found both actual conflict and adverse effect when lawyer was going to be indicted on unrelated matter at conclusion of case; lawyer had incentive to delay proceedings and evidenced poor effort in plea negotiations); Zamora v. Dugger,

(11th Cir. 1987) (no actual conflict and no adverse effect on allegation that attorney was more interested in publicity than obtaining an acquittal); United States v. Ellison,

(7th Cir. 1986), cert. denied,

,

,

(1987) (found both actual conflict and adverse effect when lawyer "testified" against defendant in a Rule 32 hearing fending off allegations by defendant which would constitute malpractice); United States v. Andrews,

(10th Cir. 1986), cert. denied,

,

,

(1987) (no actual conflict and no adverse effect when court refused to allow attorney to withdraw from representation and start medical school); Roach v. Martin,

(4th Cir.), cert. denied,

,

,

(1985) (no actual conflict when attorney was being investigated by state bar while representing defendant).

15 two issues left open by a previous multiple representation case:

whether a trial judge must sua sponte inquire into the propriety of

multiple representation, and "whether the mere possibility of a

conflict of interest warrants the conclusion that the defendant was

deprived of his right to counsel." Cuyler,

,

. In stating its Sixth Amendment standard that has

been quoted above, the Court said:

Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser's lawyer had an actual conflict of interest, it refused "to indulge in nice calculations as to the amount of prejudice" attributable to the conflict. The conflict itself demonstrated a denial of the "right to have the effective assistance of counsel." Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

Cuyler,

,

(citations and

footnote omitted). While some sentences in this paragraph do not

refer explicitly to multiple representation, they must be read in

the context of the first and last sentences of the paragraph, which

do. In particular, the last sentence, which actually states the

standard, requires that counsel have "actively represented"

conflicting interests, not that he have "actively been in a

conflict situation." Further, the two cases cited as authority in

this section, Glasser v. United States,

,

(1942), and Holloway v. Arkansas,

,

(1978), were multiple representation cases, and the footnote at the

end of the paragraph cites a law review article about multiple

16 representation: Comment, Conflict of Interests in Multiple

Representation of Criminal Co-Defendants,

, 231-32 (1977).

Justice Marshall's separate opinion in Cuyler, written to

challenge the adverse effect prong of the test, endeavors to define

"conflict of interests."

n.3,

n.3 (Marshall, J., concurring in part and dissenting in part). In

each of the ethics codes to which he refers, Justice Marshall cites

only the canon or rule dealing with multiple client representation.

Four later Supreme Court cases have clarified the scope

of Cuyler. In the first, Wood v. Georgia,

,

(1981), three employees of an adult movie theater were

prosecuted for distributing obscenity. The theater paid for their

representation and also agreed to pay their fines. When the

theater broke its promise and did not pay, the employees' probation

was revoked and the employees were incarcerated. The Supreme Court

granted certiorari to examine whether a state could imprison a

probationer for not paying a fine, but after viewing the record,

the Court remanded the case for consideration of a possible

conflict of interest.11

,

.

In Wood, the Court was troubled by the lawyer's apparent

decision to undertake a strategy that benefitted the theater at the

expense of the employees. The opinion noted that "their [the

11. Wood was technically decided under the due process clause rather than the Sixth Amendment, because only the former provision sets constitutional bounds on parole revocation hearings. The Court analogized appellants' rights in Wood to those in Cuyler, however.

17 employees'] counsel has acted as the agent of the employer,"

,

; charged "that the employer and petitioners'

attorney were seeking to create a test case," id.; and concluded

its conflict discussion by noting that "if petitioners' counsel was

serving the employer's interest in setting a precedent, this

conflict in goals may well have influenced the decision of the

trial court . . . ."

,

. While the

opinion does not say whether the lawyer formally represented the

theater or not, the lawyer was at least in the functional

equivalent of a joint representation. "[P]etitioners were

represented by their employer's lawyer, who may not have pursued

their interests single-mindedly."

,

. Both the theater and the employees expected him to advance

their interests, yet to serve one might require him to fail the

others, while doing nothing could harm both.

The second case, Nix v. Whiteside,

,

(1986) placed an outer bound on Cuyler. Whiteside's

counsel conditioned his representation on Whiteside's not

committing perjury.

, 106 S.Ct. at 991. The Court held

that a "conflict" between a lawyer's ethical obligation not to aid

perjury and a client's desire to commit perjury "is not remotely

the kind of conflict of interests dealt with in Cuyler v.

Sullivan." Id. at 176, 106 S.Ct. at 999. It noted that "[i]f a

'conflict' between a client's proposal and counsel's ethical

obligation gives rise to a presumption that counsel's assistance

was prejudicially ineffective, every guilty criminal's conviction

18 would be suspect if the defendant had sought to obtain an acquittal

by illegal means." Id.

The third case, Strickland v.

addressed Cuyler while defining how much prejudice a defendant must

show in the usual ineffectiveness case. The Court stated that

Cuyler "is not quite" a "per se rule of prejudice," and that

"[p]rejudice is presumed only if the defendant demonstrates that

counsel 'actively represented conflicting interests' and that 'an

actual conflict of interest adversely affected his lawyer's

performance.'"

,

(quoting Cuyler,

,

). The language

Strickland excerpted from Cuyler comes directly from the passage

reproduced earlier, in which the Court discussed a lawyer who

"actively represented" multiple parties.

Contrary to Beets's argument, Strickland did not say that

prejudice is presumed whenever counsel breaches the duty of

loyalty. See Beets, 986 F.2d at 1493 (Higginbotham, J.,

concurring). Strickland mentioned the duty of loyalty to

underscore the general significance of conflicts of interest.

,

. To define when that problem

becomes serious enough to attain constitutional import, or, put

differently, when it triggers the "not quite per se rule of

prejudice," the Court quoted a section of Cuyler discussing

multiple representations.

The last case in this series is Burger v. Kemp,

,

(1987), in which the Court applied the Cuyler

19 analysis to determine whether a habeas corpus petitioner's case had

been adversely affected by an "actual conflict" arising out of his

attorney's having participated with a law partner in the defense of

a co-defendant. Both men had been charged with capital murder, and

each defendant contended that he had less responsibility and was

less culpable than his co-defendant. Nevertheless, the Court found

no actual conflict and no adverse effect of the assumed multiple

representation on Burger's defense. Burger reinforces the notion

that not every potential conflict, even in multiple representation

cases, is an "actual" one for Sixth Amendment purposes.

In sum, the Supreme Court has not expanded Cuyler to

reach the ethical violations alleged in Beets's case. Cuyler, a

multiple representation case, restated a rule developed in multiple

representation cases. Nix declined to extend that rule to all

conflicts between client and lawyer. Wood simply recognized that

some third-party fee arrangements can develop into the functional

equivalent of multiple representation. Strickland cited Cuyler's

language dealing with the impact of multiple representation.

Several Justices have acknowledged this apparent limitation of

Cuyler. See Illinois v. Washington,

,

(1984) (White, J., dissenting from denial of certiorari).12 To this

12. Justice White's opinion, joined by Justices Burger and Rehnquist, pointed out the conflict in the resolution of this issue between the Illinois Supreme Court, Illinois v. Washington,

,

(1984) (holding that Cuyler's conflict of interest standard is limited to the multiple representation context), and numerous federal courts. See, e.g., Westbrook v. Zant,

(11th Cir. 1983), overruled on other grounds, Peek v. Kemp,

(11th Cir. 1986) (Cuyler not limited to the multiple representation context); United States v. Harris,

(4th Cir.), cert. denied,

,

,

(1983); United States v. Knight,

(6th Cir.

20 day, however, the uncertainty remains.13 The dissent shares this

uncertainty, arguing on one hand that Cuyler is not limited to

multiple or serial representation cases but acknowledging that it

should not apply to most breaches of legal ethics.

B. Whether Cuyler Should Apply to Conflicts Between an Attorney's Personal Interest and his Client's Interest

The Sixth Amendment assures defendants of legal counsel

whose reasonably effective assistance permits a fair trial.

Strickland,

,

(1984); Nix v. Whiteside,

,

(1986). In the absence of controlling

authority, we must decide whether, when a lawyer places his self-

interest above that of the client, the resulting conflict deserves

Cuyler's "not quite per se" rule of prejudice or Strickland's more

deferential standard of attorney competence. Which of these

standards better promotes a fair trial?

Those who seek to apply the Cuyler standard will argue

that the attorney's duty of loyalty to the client is of fundamental

importance. E.g., Strickland,

,

.

Compromise that loyalty, and the attorney has negated the

1982) (per curiam), cert. denied,

,

,

(1983); Ware v. King,

(5th Cir. 1982) (per curiam), cert. denied,

,

,

(1983); Alexander v. Housewright,

(8th Cir. 1981); United States v. Hearst,

(9th Cir.), cert. denied,

,

,

(1981).

13. See United States ex rel. Duncan v. O'Leary,

(7th Cir. 1986), cert. denied,

,

,

(1987) ("The precise scope of the category of claims to which the Cuyler standard applies has not been definitively stated by the Supreme Court"); Hayes v. Lockhart,

(8th Cir.), cert. denied,

,

,

(1985) ("'[T]here is no litmus test to determine whether an actual conflict exists'") (citation omitted).

21 assumption underlying Strickland's deferential approach to

reasonable professional conduct, which is that the attorney has the

best interests of the client at heart. In order to satisfy the

Sixth Amendment, any breach of the duty of loyalty must meet the

severe standard of "not quite per se" prejudice.

That position has some appeal, but in our view, it

oversimplifies legal ethics and would obscure Sixth Amendment

doctrine. Not all conflicts of interest that affect the attorney's

"duty of loyalty" have the same consequences, and they are not all

suited to Cuyler's stringent rule.14 Even the dissent does not

advocate applying the Cuyler rule to all breaches of the duty of

loyalty. The dissent contents itself with arguing that a media

rights contract and a few other breaches have a "highly

particularized and focused source" that justified application of

Cuyler.15

14. See Johnston v. Mizell,

(7th Cir. 1990), cert. denied,

,

(1991) ("Cuyler presumption of prejudice cannot be applied blindly to every ineffective assistance of counsel claim involving a conflict of interest"); Williams v. Calderon,

,

(9th Cir. 1995) (Cuyler does not extend to defendant's claim that pro bono attorney was burdened with impermissible conflict under Cuyler because payment for additional investigative and psychiatric services would have had to come out of lawyer's own pocket); United States v. Zackson,

(2nd Cir. 1993) (Strickland, and not Cuyler, is the appropriate test when defendant alleged counsel's busy schedule created conflict in his representation of the case; this is not the kind of conflict subject to Cuyler rule). Indeed, prior to Cuyler, a significant majority of the circuits precluded habeas relief absent a showing of prejudice arising from a conflict between the interests of the defendant and his attorney. See Gregory S. Sarno, Annotation, Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel,

, § 3 (1981) (Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits required prejudice whereas the Fifth, Eighth, and D.C. Circuits did not).

15. The dissent's "rule" reserves Cuyler at least for attorney-client conflicts based on media rights contracts, contingent fee arrangements and conflicts arising from an attorney's involvement in criminal conduct with his

22 1. The scope of the "duty of loyalty" is ambiguous.

Founding constitutional doctrine on the lawyer's "duty of

loyalty" is an enterprise set in shifting sand. The term "duty of

loyalty," narrowly defined, refers to an attorney's responsibility

to place his client's interest ahead of his own interest or, in the

case of multiple representation, not to sacrifice one client's

interest for the other's. See, e.g., ABA Annotated Model Rules of

Professional Conduct, Rule 1.7 cmt. (1992). But even on this

level, legal ethics rules generally distinguish between the duty of

loyalty as measured against an attorney's self-interest and cases

of multiple representation. More troublesome, the boundaries of

the duty of loyalty are elastic; they potentially subsume or

overlap a number of other ethical responsibilities to the client.

Taking the narrow sense of the duty of loyalty, the

canons and rules of ethics treat separately conflicts arising from

the attorney's self-interest and those involving multiple client

representation. See, e.g., ABA Annotated Model Rules of

Professional Conduct, Rule 1.7:

Conflict of interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless . . .

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another

client. The dissent, however, makes no effort to explain why these situations necessarily involve a greater constitutional risk than other ethical conflicts. Indeed, in light of the fact that hardly any criminal conviction has ever been reversed because of counsel's media rights contract, n.19 infra, the dissent's selection seems extraordinarily result-oriented.

23 client or to a third person, or by the lawyer's own interests unless . . . .16

The reason for distinguishing multiple representation

conflicts from those involving self-interest is clear. When

multiple representation exists, the source and consequences of the

ethical problem are straightforward: "counsel represents two

clients with competing interests and is torn between two duties.

Counsel can properly turn in no direction. He must fail one or do

nothing and fail both." Beets v. Collins, 986 F.2d at 1492,

(Higginbotham, J., concurring). "An attorney cannot properly serve

two masters." United States v. Locascio,

(2nd Cir.

1993). Conflicts between a lawyer's self-interest and his duty of

loyalty to the client, however, fall along a wide spectrum of

ethical sensitivity from merely potential danger to outright

criminal misdeeds. Sources of potential conflict, from among the

manifold variations possible, include: matters involving payment

of fees and security for fees; doing business with a client; the

use of information gained while representing a client; a lawyer's

status as a witness; and a lawyer's actions when exposed to

malpractice claims. Ethical rules typically separate each of these

16. See also, ABA Model Rules of Professional Conduct, Rule 1.8, "Conflict of interests: prohibited transactions," which list ten separate categories of "prohibited" transactions between an attorney and client, only two of which, §§ (f) and (g) deal respectively with a lawyer's receipt of compensation for representing a client from a third party and a lawyer's duty in regard to settlement when representing two or more clients in a civil or criminal proceeding. See generally, Developments in the Law -- Conflicts of Interest in the Legal Profession,

(1981). For simplicity, the ABA Model Rules will be referenced in this discussion because they reflect prevailing standards in most United States jurisdictions. See also Raymond L. Wise, Legal Ethics 73-76 (1979 Supp.).

24 problems, for each type deserves particular consideration. See,

e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.8.

Ultimately, the duty of loyalty in its broad sense

resonates against the lawyer's obligation to perform competent,

effective work. The ABA Model Professional Rules express this

overlap:

The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1 and 1.5.

ABA Model Rule 1.7 cmt. Rule 1.1 states the lawyer's duty of

competence, Rule 1.5 the duty to charge a reasonable fee. If the

lawyer stints on his work or is not sufficiently diligent for a

client either because he is not well paid by that client or because

of an extrinsic influence, he has potentially breached the duty of

loyalty. Where the obligation to a single client is concerned, the

duties of loyalty and competence are intertwined.

2. The effects of breaching the duty of loyalty are clearest in multiple representation cases.

Because multiple defendant representation poses a unique,

straightforward danger of conflict, the Cuyler rule of "not quite

per se" prejudice makes eminent sense. A defendant whose attorney

"actively represented conflicting interests" has had no real lawyer

secured to him by the Sixth Amendment. As Justice Powell put it in

Cuyler, "[t]he conflict itself demonstrated a denial of the 'right

to have the effective assistance of counsel.'"

,

(quoting Glasser,

,

467). Moreover, this type of conflict may be addressed by a

prophylactic rule, whereby a court, made aware of multiple

representation, can insure early in the criminal proceeding that

the client has been informed of the pitfalls of multiple

representation and knowingly waived any conflict. See, e.g., Fed.

R. Crim. P. 44(c). As Strickland pointed out, "Given . . . the

ability of trial courts to make early inquiry in situations likely

to give rise to conflicts, . . . it is reasonable for the criminal

justice system to maintain a fairly rigid rule of presumed

prejudice for conflicts of interest."

,

.

But only in the multiple representation context is the

duty of loyalty so plain. Only then is the risk of harm high

enough to employ a near-per se rule of prejudice.17 While loyalty

may be implicated in other judgments a lawyer makes, in no other

category of conflicts is the risk of prejudice so certain as to

justify an automatic presumption. See Cuyler,

,

. When the duty of loyalty is challenged by an

attorney's self-interest, the range of possible breaches, as

previously shown, is virtually limitless. Likewise, their

consequences on the quality of representation range from wholly

benign to devastating. Compare United States v. Horton,

(7th Cir. 1988) with United States v. Ellison, 798

17. Although we have no occasion to discuss the question here, a powerful argument can be made that a lawyer who is a potential co-defendant with his client is burdened by a "multiple representation" conflict that ought to be analyzed under Cuyler.

, 1106-09 (7th Cir. 1986) and United States v. Stoia,

(7th Cir. 1994). Applying a near-per se rule of

prejudice to this spectrum of potential ethical problems is a

draconian remedy.

3. Strickland best addresses attorney self-interest conflicts.

In stark contrast to multiple representation situations,

there is little meaningful distinction between a lawyer who

inadvertently fails to act and one who for selfish reasons decides

not to act. The "conflict" between the lawyer's self-interest and

that of his client is not a real conflict in the eyes of the law.

Rather than being immobilized by conflicting ethical duties among

clients, a lawyer who represents only one client is obliged to

advance the client's best interest despite his own interest or

desires. Even though his disloyalty does not leave the client

bereft of counsel, it may well impinge on the effectiveness of his

representation.

A few illustrations demonstrate the persistent overlap

between self-interested duty of loyalty problems and attorney

effectiveness:

(1) An attorney represents a client charged with white collar crime. His fee will be paid from the profits of the business. The attorney has an incentive to plea bargain rather than risk the business's closing if the client is unsuccessfully defended.

(2) An attorney has neglected to file a competency motion. To cover up the mistake, it is alleged, he tardily files an inadequate motion.

27 (3) An attorney undertakes client representation despite an overabundance of work. He then neglects to interview a potential alibi witness.

(4) An attorney is a potential witness for a client he has represented in the past. Rather than testify, however, he continues to represent the client in the case.

See also cases cited in n.10, supra. The duty of loyalty and other

ethical rules have arguably been tested or breached in each of

these cases, but each also raises a question of lawyer competency.

Because the scope of the duty of loyalty with respect to

attorney self-interest is inherently vague and overlaps with

professional effectiveness, Strickland ought to set the

constitutional norm of adequate representation. The Court has

already hinted at such a possibility:

Under the Strickland standard, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.

Nix v. Whiteside,

,

. Nix invoked

Strickland, not Cuyler, as the benchmark for judging ethical

violations. In so doing, the Court hesitated "to narrow the wide

range of conduct acceptable under the Sixth Amendment so

restrictively as to constitutionalize particular standards of

professional conduct and thereby intrude into the state's proper

authority. . . ."

A standard that requires a showing of

prejudice and affords appropriate latitude to professional judgment

best addresses ethical breaches under the Sixth Amendment.

Strickland lists other powerful reasons supporting its

more flexible test of constitutional competence. Strickland

declined to "exhaustively define obligations of counsel [or] form

28 a checklist for judicial evaluation of attorney performance."

,

. The Court stated that

"[p]revailing norms of practice as reflected in American Bar

Association standards . . . are guides to determining what is

reasonable, but they are only guides."

As Strickland astutely

warned, "[a]ny such set of rules would interfere with the

constitutionally protected independence of counsel and restrict the

wide latitude counsel must have in making tactical decisions."

,

. Indeed,

[T]he existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.

,

.

These considerations, which prompted the Court's

reluctance to micromanage standards of professional and ethical

behavior, apply with full force to the duty of loyalty with respect

to attorney self-interest. The interests of both the defendant and

society are served by a standard that, as far as possible, does not

straitjacket counsel in a stifling, redundant federal code of

professional conduct. Moreover, the purpose of the Sixth Amendment

is not primarily to police attorneys' ethical standards and create

a constitutional code of professional conduct; its purpose is to

assure a fair trial based on competent representation. Finally,

while Strickland does state that counsel owes the client a duty to

avoid conflicts of interest (citing Cuyler), this is just one duty

29 listed among others -- the duties to advocate the defendant's

cause, to consult with and keep the defendant informed, and to

employ skill and knowledge on the defendant's behalf. The Court

emphasizes these as an unexhaustive list of the basic duties of

counsel.

,

. To list these duties is

thus the starting point, not the conclusion, of constitutional

analysis. We are firmly persuaded that it is most consistent with

Strickland to assess the duty of loyalty pitted against a lawyer's

self-interest under the Strickland test.18

4. Cuyler v. Strickland

If Cuyler's more rigid rule applies to attorney breaches

of loyalty outside the multiple representation context,

Strickland's desirable and necessary uniform standard of

constitutional ineffectiveness will be challenged.

Recharacterization of ineffectiveness claims to duty of loyalty

claims will be tempting because of Cuyler's lesser standard of

prejudice. See United States v. Stoia,

(7th

Cir. 1994); United States v. McLain,

(11th

Cir. 1987). A blurring of the Strickland standard is highly

undesirable. As a result of the uncertain boundary between Cuyler

and Strickland, the focus of Sixth Amendment claims would tend to

shift mischievously from the overall fairness of the criminal

18. There is another reason why multiple representation cases are more amenable to Cuyler's fairly rigid rule of presumed prejudice. They are amenable to prophylactic rules requiring court oversight of potential conflicts. Self-interested duty of loyalty problems ordinarily defy prophylactic treatment, suggesting appropriateness of a real prejudice standard for after-the-fact review.

30 proceedings -- the goal of "prejudice" analysis -- to slurs on

counsel's integrity -- the "conflict" analysis. Confining Cuyler

to multiple representation claims poses no similar threats to

Strickland. The dissent, of course, purports to avoid unwarranted

expansion of Cuyler by confining its scope, apart from multiple

representation cases, to instances involving "extraordinary"

attorney-client conflicts "stemming from a highly particularized

and powerful source." This open-ended, though hyperbolic, language

is bereft of any animating principle and, as such, is unfortunately

guaranteed to spawn far more litigation that it resolves.

For all these reasons, we conclude that Strickland

governs the issue whether Andrews's media rights contract and

status as a witness resulted in the denial of constitutionally

adequate counsel to Beets.

C. Strickland Applied

To prevail under the Strickland standard, Beets must show

that her attorney's performance fell below an objective standard of

reasonableness and that it prejudiced the defense, undermining the

reliability of the proceeding. Strickland prejudice, as has been

noted, considers the overall result of the prosecution. Beets

alleged two ethical breaches by Andrews, the taking of a media

rights contract in full satisfaction of his fee and his failure to

withdraw and testify as a material witness. Although these lapses

are alleged to interact, they may conveniently be discussed in

turn. It is important to note that although the dissent would not

approve the following discussion of Andrews's competence under

31 Strickland, our colleagues do agree that if Strickland sets the

Sixth Amendment standard here, there is no constitutional violation

because Beets was not prejudiced by Andrews's conduct as her

counsel.

1. Media rights contract.

This court joins other courts, scholars and organizations

of the bar who have uniformly denounced the execution of literary

and media rights fee arrangements between attorneys and their

clients during the pendency of a representation.19 The Texas Code

of Professional Responsibility stated at the time of this trial:

Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client by which he acquires any interest in publication rights with respect to the subject matter of his employment or proposed employment.

Supreme Court of Texas, Code of Professional Responsibility,

DR5-104(B) (1982). See also ABA Model Rules of Professional

Conduct, Rule 1.8(d). Succinctly, a media rights contract is

offensive because it may encourage counsel to misuse the judicial

process for the sake of his enrichment and publicity-seeking, and

it necessarily trades on the misery of the victim and his family.

Perhaps because of the widely shared professional

disapproval of media rights contracts, few cases challenging them

19. See United States v. Hearst,

(9th Cir. 1980) cert. denied,

,

,

(1981); Mark R. McDonald, Literary-Rights Fee Arrangements in California: Letting the Rabbit Guard the Carrot Patch of Sixth Amendment Protection and Attorney Ethics?,

(1991); American Bar Ass'n Standards for Criminal Justice, Standard 4-3.4 (2d ed. 1980); American Bar Ass'n, Model Code of Professional Responsibility, DR 5-104(B); American Bar Ass'n, Model Rules of Professional Conduct, Rule 1.8(d).

32 have arisen. Although the cases have been judged under various

legal standards, hardly any convictions have been reversed for a

pernicious influence of such contracts on counsel's effectiveness.20

So it must be here. Notwithstanding Andrews's apparent

breach of his ethical obligations, this court sits not to

discipline counsel but to determine whether Beets was thereby

deprived of a fair trial. The state has the duty to punish an

attorney for unethical conduct. For reasons not disclosed in the

record, the state declined to discipline Andrews for this fee

arrangement. While the media rights contract posed a serious

20. See Buenoano v. Singletary,

(11th Cir. 1992) (remanded for evidentiary hearing on whether fee arrangement that gave first $250,000 of book and movie contract to the attorney created an actual conflict and an adverse effect); United States v. Marrera,

, 205- 09 & n.6 (7th Cir. 1985), cert. denied,

,

,

(1986) (found no actual conflict and no adverse effect in fee arrangement involving movie rights); United States v. Hearst,

(9th Cir. 1980), cert. denied,

,

,

(1981) (remanded for a hearing on whether F. Lee Bailey's book contract with Patty Hearst created an actual conflict of interest); Wojtowicz v. United States,

(2d Cir.), cert. denied,

,

,

(1977) (Pre-Cuyler case found no prejudice from movie rights deal); Ray v. Rose,

(6th Cir.), cert. denied,

,

,

(1976) (Pre-Cuyler case found no prejudice from media rights contract with attorney); Maxwell v. Superior Court,

,

,

(Cal. 1982) (publication rights contract between attorney and defendant does not per se render counsel ineffective and conflicts of interest created thereby are waivable); People v. Bonin,

,

,

(Cal. 1989), cert. denied,

,

,

(1990) (no reversible error in literary rights fee arrangement); People v. Gacy,

,

(1988), cert. denied,

,

,

(1989) (no conflict of interest when attorney rejected offer by defendant to grant attorney book rights); Stafford v. State,

(Okla.Crim.App.) cert. granted and judgment vacated,

,

,

(1984) (no actual conflict or adverse effect from publication rights contract); People v. Corona,

,

(Cal.Ct.App. 1978) (found media rights conflict created an actual conflict and resulted in prejudice when "trial counsel assumed a position virtually adverse to his client and, totally unsupported by strategic or tactical considerations, took deliberate steps to thwart the development of viable defenses"); Dumond v. State,

(Ark. 1988) (no actual conflict in media rights contract between attorney and defendant and his wife).

33 potential conflict of interest, Beets failed to show how it

hindered Andrews's presentation of her defense or prejudiced her by

rendering the result of her criminal prosecution fundamentally

unreliable. Beets has not asserted that Andrews manipulated the

case to enhance publicity21 or that the contract generally clouded

his good judgment.22 Beets has shown no actual influence of the

media rights contract on the conduct of her defense. In the state

habeas proceedings, Andrews filed an affidavit in which he denied

that the media rights contract affected his representation of

Beets. The state courts accepted this unrebutted statement. At

the federal habeas hearing, Andrews's co-counsel Gilbert Hargrave

was asked by the court, "was there any action taken by Mr. Andrews

during the trial of this case that was in any way affected by the

fact that he or his son had this book deal assignment?" Hargrave

answered, "No. If there is such an action, I'm not aware of it.

I did not observe it." The federal district court concluded:

After further review of the record, the Court simply does not believe that the media rights contract affected Andrews' performance at any conscious level. (footnote omitted). There is, of course, no adverse effect where there was no effect at all.

The finding of the district court is shielded by the

clearly erroneous standard, while that of the state courts is

entitled to the presumption of correctness in habeas corpus

21. See, e.g., United States v. Hearst,

(9th Cir. 1980), cert. denied,

,

,

(1981); People v. Corona,

,

(Cal.Ct.App. 1978).

22. See United States v. Marrera,

(7th Cir. 1985), cert. denied,

,

,

(1986).

34 proceedings.

(d). Those findings are that the

media rights contract did not affect Andrews's conduct of Beets's

defense. Accordingly, whether or not the media rights contract

represented deficient performance under Strickland, it did not

prejudicially affect Beets's defense.

Beets continues to assert, however, that because of the

media rights contract, Andrews was motivated to continue his work

as defense counsel when he should have withdrawn and testified as

a material defense witness. There is no support in the record for

a finding concerning Andrews's subjective motivation, and none has

been made by the state or federal courts. Whether a lawyer-as-

witness conflict existed, however, is a separate question to which

we now turn.

2. Andrews as defense witness.

Beets's theory that Andrews should have testified as a

defense witness runs thus: if the jury believed that Andrews first

suggested to her, eighteen months after Jimmy Don's disappearance,

the possibility of claiming Jimmy Don's death benefits from the

fire department, they could not find that Beets murdered Jimmy Don

for remuneration. Andrews was therefore a material exculpatory

witness who was ethically required to withdraw and testify on her

behalf.

Both prongs of Strickland are at issue here: whether

Andrews's performance was unconstitutionally deficient and whether

his failure to testify prejudiced the defense. From an ethical

standpoint, the lawyer-as-witness conflict, unlike the loyalty

35 conflict implicated by a media rights contract, is difficult to

sort out. This court may be guided but is not constitutionally

bound by the Texas Code of Professional Responsibility effective at

the date of trial:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial . . . .

Supreme Court of Texas, Code of Professional Responsibility, DR 5-

102(A) (1982) (emphasis added). For reasons that are intuitively

obvious, neither this nor similar provisions creates a bright-line

ethical rule requiring withdrawal of a lawyer whenever he might be

a witness for his client.23 The constitutional evaluation of a

lawyer's decision whether to take the stand must also be flexible

and must accord a heavy measure of deference to the lawyer's

presumed professional capability. Strickland,

,

. The essential inquiry is what sort of testimony he

could have given in Beets's defense.

Regarding the alleged advocate/witness conflict, the

district court concluded that

23. The State contends that Roberts's testimony renders Andrews's potential testimony merely cumulative. The State asserts that where an attorney's testimony is not essential to the case, or would be merely cumulative of other evidence, there is no ethical duty placed upon Texas lawyers to withdraw from representation. See State Bar of Texas, Ethical Considerations on Code of Professional Responsibility, EC 5-10 (1972): It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue.

36 Andrews obviously should have known of his dual status as witness and advocate prior to trial. Andrews' dual status should have also been apparent to both the judge and district attorney as the trial unfolded. The Court is persuaded that the conflict never occurred to any of the participants.

The court correctly found that the experienced trial

court participants never perceived of Andrews as a potential

defense witness.24 Perhaps it can be inferred from this collective

unawareness that Andrews's exculpatory testimony was not highly

significant. But more important than speculation is a careful

review of the state court and federal habeas records, which

considerably diminishes the force of such potential testimony.

24. Nothing in the record suggests that the prosecutor or trial judge thought Andrews was a possible witness, and Andrews was never directly asked at the federal habeas hearing whether he should have been a defense witness. Andrews stated that he believed Betty Beets did not commit the murders, but she was at first reluctant to reveal the true facts to him because of the implication for her children's guilt. Andrews did not consider withdrawing as Beets's attorney: Q. [McGlasson] It never occurred to you during the trial to withdraw, to move to withdraw or no one suggested that you should do that. Is that correct?

A. Well, it sort of occurred to me when I found out I wasn't being paid, but I didn't. It occurred to me, I'm going to have to be honest with you, but I didn't do it. Q. But that was the only reason that it might have occurred to you is that you felt like you weren't receiving any payment. Is that correct? A. Well, that's true. I'm not doing this as a hobby. Q. Right. There's no other reason you could think of during the trial why you should withdraw from this case. Is that correct? A. From Ms. Stegner's case I did withdraw, there became a conflict. From Betty's case, I felt strongly toward this case and, no, I wouldn't let her down. Unh-unh.

Q. Right. Okay. A. Not even for money, and I didn't get any.

37 Beets relies heavily on an affidavit Andrews executed for

the federal habeas proceeding stating that Beets

had no idea whether she was entitled to benefits. She did not even know whether benefits existed. She did not know, for instance, whether her husband had been insured, or whether he had a pension, nor did she know whether she was the beneficiary. She did not know who, if anyone, may have been her husband's insurer or what amount he may have been insured for.

Andrews Affidavit ¶ 7. He also stated that he "was the one who

mentioned the possibility that she may have been entitled to

benefits." Id. ¶ 10, Beets, 986 F.2d at 1487.

Taken at face value, the affidavit suggests that Andrews

would have been a helpful witness to Beets. At the habeas hearing,

however, his answers to questions posed by Beets's new attorney

were not nearly as strong:

Q. Well, as your affidavit states, I believe she came to you looking for insurance benefits, but not with respect to the death of Jimmy Don Beets, rather for a home that had been burned. Is that correct?

A. [Andrews] Well, I believe that was a mobile home.

Q. Correct. And it was your idea that she may have some benefits arising from this death and she had no idea of this. Is that correct?

A. Well, I thought it would be my idea and I think my obligation too because I don't know if it's in this affidavit or not, but her husband had been missing for quite some time and everybody in the community knew that. I knew Mr. Beets worked for the Fire Department. It was through an investigation of myself and two lawyers here in Tyler that we realized that some benefits might be due and payable.

Q. Did Ms. Beets suggest this or did you in your initial conversations with her?

38 A. Partner, that's been a long time ago. I believe that I went into it first. I couldn't swear to that and I'm under oath.

Q. Well, in your affidavit you've stated that you knew from your discussions with her that this was not the case, that is, that the State could not prove that she took the life of Mr. Beets for the purpose of remuneration. Is that correct? Is that a true statement?

A. What page are you reading from?

Q. That's Paragraph 14.

A. That was my thought and belief. Yes, that's true and correct.

Q. And just to reference Paragraph 7 of the affidavit, you also stated that when you first questioned Ms. Beets you quickly discovered that she had no idea whether she was entitled to benefits and you've sworn that that was a true statement. Is that correct?

A. That was a conclusion that I drew by my conversation with Betty Beets.

The most that Andrews could persuade the jury of was his

"conclusion" that Betty Beets knew nothing of her husband's

benefits when she visited him.25

Moreover, Andrews was not the only source of testimony

that Beets was unaware of Jimmy Don's death benefits before she

visited Andrews. Beets herself so testified at trial under

questioning by Andrews. Had Andrews elicited this testimony

believing or knowing it to be false, he would be exposed to a

charge of suborning perjury.

25. Not only was Andrews's testimony limited to his inference about Beets's knowledge, but such testimony might well have led to incriminating cross-examination on his earlier dealings with Beets.

39 Additional testimony on Beets's ignorance of the death

benefits was adduced from Bruce Roberts. The only part of

Andrews's proposed testimony that Bruce Roberts could not replicate

was Andrews's affidavit statement that he had been the one to

suggest to Beets that she seek her missing husband's insurance and

pension benefits. Beets vastly overrates the importance of this

statement by Andrews, however. Because Andrews had no knowledge of

Beets's activities from the time of the murder until nearly two

years later when she met with him, he could not testify as to her

knowledge of what benefits might be available. Both he and Roberts

could only draw an inference or speculate upon her state of mind

from their conversations.

In any event, neither Andrews nor Roberts was the first

witness to discuss Jimmy Don's death benefits with Beets. That

distinction belonged to Denny Burris, who testified that when he

visited her a few days after the disappearance, she inquired about

benefits. The fact of inquiry does not show that she knew

beforehand of the existence of benefits, but her inquiry and

discussion with Burris necessarily weakened the argument that, many

months later, Beets's attorneys thought she knew nothing of

potential death benefits. Neither Andrews nor Roberts could dispel

a certain skepticism about that claim.

Because Andrews's potential testimony for Beets was

cumulative, he was not a necessary witness for her defense and did

not face a substantial advocate/witness conflict. His failure to

40 withdraw and testify was not professionally unreasonable under

Strickland.

Not only was Andrews's potential exculpatory testimony

largely cumulative, but when considered against the totality of

evidence that Beets committed murder for remuneration, we cannot

say that his failure to testify was prejudicial. Beets told her

daughter Shirley Stegner, in connection with the murder of Beets's

fourth husband, that she would have lost the trailer, which he

owned, if they had simply divorced. Beets surreptitiously tried to

obtain a life insurance policy on Jimmy Don only months before he

disappeared. After his death, Beets sold his boat and tried to

sell and then to collect fire insurance proceeds on his separately

owned trailer home. Chaplain Denny Burris testified that Beets was

interested in Jimmy Don's benefits within days after he "went

fishing." All of this evidence, as the Texas Court of Criminal

Appeals noted, was pertinent to the question of Beets's

remunerative motive. Finally, the cold, calculated nature of the

crime and its cover-up strongly suggested that Beets had a motive

beyond simply getting rid of her husband after one year of

marriage. She wanted it to appear that he died of natural causes.

If he had merely disappeared, suspicion would have focused on her

and she could not have benefitted from the crime. Neither we nor

the dissent can conclude that the result of her prosecution would

in reasonable probability have differed if Andrews had testified.

41 D. Alternate Cuyler Holding

Finally, even if this en banc court has erred in

suggesting that attorney conflicts of interest, apart from the

multiple representation context, should be governed by the

Strickland standard, we conclude that Beets's claim also fails to

garner relief under Cuyler. Because there was no objection at

trial to either of the alleged conflicts, Beets had to establish

the existence of an actual conflict that adversely affected her

lawyer's performance. Cuyler,

,

.

The panel opinion first concluded there was no "actual

conflict" of a witness/advocate nature because, as was shown in the

preceding section, Andrews's testimony was cumulative of other

defense evidence and not materially more helpful to Beets. The

panel also concluded that Beets alleged, at most, a merely

hypothetical or speculative witness/advocate conflict, which did

not materialize into an actual conflict that forced Andrews to

choose between his self-interest and his duty to Beets. See

Stevenson v. Newsome,

(11th Cir. 1985),

cert. denied,

,

,

(1986)

(To establish an actual conflict "[i]t must be demonstrated that

'the attorney 'made a choice between possible alternative courses

of action, . . . If he did not make such a choice, the conflict

remained hypothetical.''") (citations omitted); United States v.

Litchfield,

(10th Cir. 1992); United States v.

Acevedo,

(7th Cir. 1989); United States v.

Horton,

(7th Cir. 1988). The panel observed

42 that Beets never proved that the potential conflict of interest

developed into an actual conflict of interest.

The dissent has agreed that a witness/advocate conflict

alone is not the sort that even under their approach should be

governed by a Cuyler inquiry. Because the entire court subscribes

to the application of Strickland to this type of conflict, we are

in agreement that Beets has not established a constitutional

violation.

As to the media rights contract, there was no "actual

conflict" under Cuyler because, as the record abundantly shows and

as two judges on the panel held, the potential conflict speculated

by Beets never materialized into an actual conflict in Andrews's

representation. The record does not demonstrate that the contract

induced Andrews to compromise his zealous representation of Beets

in favor of his own pecuniary interest. Absent a showing that

Andrews nefariously chose to compromise his efforts in such a way,

this court cannot conjecture otherwise. See, e.g., Stevenson

; see also cases cited n.20, supra.

The dissent also charges that the existence of an actual

conflict inducing constitutionally ineffective assistance of

counsel is a question of fact judged from an "objective"

standpoint. However, the Supreme Court rejected this proposition

in both Strickland and Cuyler. For instance, in Strickland, the

Court explicitly recognized that

in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C.

43 § 2254(d). Ineffectiveness is not a question of 'basic, primary, or historical fact.' Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact.

Strickland,

,

(quoting Townsend v.

Sain,

, 309 n.6,

, 755 n.6 (1963)) (citing

Cuyler,

,

). Consequently, as with

the related question of constitutional ineffectiveness of counsel,

the federal district court's finding of an actual conflict inherent

in the media rights contract is not shielded from appellate

scrutiny by the clearly erroneous rule.

Finally, even if the media rights/witness conflict was an

actual one, it did not adversely effect Andrews's representation of

his client.26 The dissent seeks to apply a three part test used by

the Second Circuit in Winkler v. Keane,

(2d Cir. 1993),

cert. denied,

(1994), as the basis of its Cuyler

analysis. The dissent thus argues that (1) there was an "actual

conflict" for Cuyler purposes simply because of the existence of

26. With due respect, the dissent's claim that this opinion somehow "conflates the existence and effect elements of the [Cuyler] analysis" is mistaken. Of course, both elements are necessary before this court can grant habeas corpus relief under Cuyler; Beets does not prove either element. This court's structured inquiry closely mirrors and is instructed by the Supreme Court's approach in Burger v. Kemp,

,

(1987), which held that "the asserted actual conflict of interest, even if it had been established, did not harm [the] lawyer's advocacy." Likewise, had Beets been able to prove an actual conflict, habeas relief should still be denied because Beets did not demonstrate that it adversely affected her representation.

Given the approach in Burger, the dissent's critique obfuscates the proper disposition of this case. Since both the state court and the district court agreed that the media rights contract had no effect on Andrews's representation of Beets, there is no need for a remand; relief under Cuyler is unavailable as soon as the petitioner fails to prove either an actual conflict or an adverse effect.

44 the media rights contract; (2) there was an "adverse effect" on

Andrews's representation because he could have withdrawn and

testified for Beets; and (3) the remaining question, which must be

remanded, is whether the media rights contract caused Andrews to

withdraw. Our disagreements whether there was an actual or

potential conflict and whether the conflict should be judged from

an objective or subjective standpoint are of academic interest at

this point, however. Even if we agreed with the dissent's position

on the first two Winkler issues, this en banc majority finds no

basis for a remand for additional fact finding. The state courts

did their job. Confronted with Beets's allegation that Andrews

ineffectively represented her because of the media rights contract,

Andrews filed an affidavit specifically denying the charge. The

state trial courts specifically found that the contract did not

affect his zealous representation.

This federal court must accord a presumption of

correctness to that finding. Sumner v. Mata,

(1981)27. Further, although the federal district judge declined to

27. In relevant part,

(d) provides that

In any proceeding instituted in a Federal court . . . for a writ of habeas corpus . . ., a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State . . . were parties, . . . shall be presume to be correct, unless the applicant shall establish or it shall otherwise appear . . .

(d). Thus, the statute unambiguously dictates that the presumption of correctness afforded by this court is mandatory, not

permissive. This presumption can only be rebutted if the petitioner proves one of the statutory exceptions. See

(d)(1)-(8). Since the

45 plumb counsel's subconscious motivation, he found no conscious

effect of the media contract on Andrews's decision not to testify.

As the court put it, "Where there is no effect, there can be no

adverse effect." There is no point in remanding to give Beets a

chance to prove what she has not yet proved in state or federal

district court. The media rights contract did not adversely affect

Andrews's performance because it had no impact on his failure to

testify. See Winkler,

(the court adheres to state

court findings that contingent fee did not cause counsel's strategy

decisions).

Accordingly, Beets has not established that she was

deprived of constitutionally effective counsel under Cuyler because

of the media rights contract or Andrews's dual status as

witness/advocate.

CONCLUSION

For the foregoing reasons, the district court judgment

granting the writ of habeas corpus must be REVERSED.

dissent concedes that "no party has addressed the presumption of correctness,"

the presumption has not been rebutted and this court must adopt it. Moreover, this court neither adopts nor raises this presumption anew. To the contrary, we emphasize and rely on both the state and district

courts' fact finding that the petitioner's grant of media rights to Andrews's son did not affect her representation at all.

46 HIGGINBOTHAM, with DAVIS and EMILIO M. GARZA, Circuit Judges,

concurring:

I concur in the opinion of the court except its alternative

holding that petitioner would be entitled to no relief if the

Cuyler standard were applicable. For the reasons stated in my

opinion concurring in the panel opinion, I would afford petitioner

at least the relief fashioned by Judge King in her dissenting

opinion's application of Cuyler, if it were applicable.

47 KING, with POLITZ, Chief Judge, GARWOOD, SMITH and WIENER, Circuit

Judges, dissenting:

I respectfully dissent from the majority's decision to reverse

the district court's judgment granting the writ.

It is important to recognize at the outset that whether an

actual conflict of interest between an attorney and his client

exists is a separate inquiry from whether we apply Cuyler v.

Sullivan,

(1980), or Strickland v. Washington,

(1984), when a criminal defendant or, as here, a habeas

petitioner challenges his conviction based on the alleged existence

of an actual conflict of his trial counsel. Whether an attorney-

client conflict exists must be addressed at the commencement of the

representation not only by the attorney and his client, but also

frequently by the trial court. The same question must be addressed

as a threshold issue on appeal or on habeas review. If we allow

the context in which the question of the existence of an actual

attorney-client conflict arises here -- on retrospective review of

a conviction -- to distort the criteria for determining whether an

actual conflict exists, we inevitably skew the same inquiry when it

is made at the beginning of the representation. This we cannot do.

48 The district court's conclusion that the execution of a media

rights contract created an actual conflict of interest between E.

Ray Andrews and his client, Betty Lou Beets, is correct, and the

majority's contrary conclusion is legally and factually

insupportable. If that conflict of interest was the cause of

Andrews's failure to withdraw and testify on Beets's behalf -- an

issue that I would remand to the district court to decide -- then

Beets will have shown that it had an adverse effect on Andrews's

representation, and applying Cuyler, the writ was properly granted.

Finally, I disagree with the majority's unprecedented decision

to limit the rule of Cuyler to cases involving multiple or serial

representation. The court thereby excludes from the ambit of

Cuyler an exceptional conflict between an attorney's self-interest

and his client's interest stemming from a highly particularized and

powerfully focused source, a media rights contract. If we reserve

Cuyler for extraordinary attorney-client conflicts of that sort,

not normally encountered in law practice, and we apply Strickland

to alleged deficiencies in an attorney's performance having their

sources in the more common incidents of the attorney-client

relationship, we avoid having the Cuyler exception swallow the

Strickland rule. At the same time we preserve the benefit of the

Cuyler inquiry for those exceptional cases that lie at the heart of

the principles animating it.

I. BACKGROUND

A. Andrews's Representation

49 A full understanding of the issues in this appeal requires a

more complete examination of the facts and circumstances

surrounding E. Ray Andrews's representation of Betty Lou Beets than

the majority provides. It is clear from the record of Beets's

trial and from the record of the federal habeas proceedings that

the testimony of Andrews was critical to Beets's defense that she

did not murder Jimmy Don Beets for remuneration. It is also clear

from the record of the federal habeas proceedings that Andrews

contemplated obtaining the media rights contract very early in his

representation of Beets, long before the trial began.

As the majority notes, in late 1984, more than a year after

Jimmy Don's disappearance, the mobile home in which Beets lived was

destroyed by fire.28 The insurance company, apparently suspicious

of the claim, resisted paying on the policy. Thus, in his

testimony at the federal habeas proceeding, Andrews agreed that

Beets "came to [him] looking for insurance benefits, but not with

respect to the death of Jimmy Don Beets." Instead, Andrews

testified, Beets approached him for help in collecting the proceeds

from the insurance policy covering the mobile home.

At the habeas proceeding, Andrews testified that he believed

that he had suggested to Beets, and thought he was obligated to

suggest, pursuing any benefits that might be available as a result

of Jimmy Don's disappearance. As Andrews testified, "Ms. Beets

The mobile home was Jimmy Don's separate property, but until Jimmy Don's disappearance, Betty Lou and Jimmy Don resided in the mobile home together. After Jimmy Don disappeared, Betty Lou continued to reside in the mobile home.

50 never pushed me like some clients would for money, proceeds, and it

was . . . through independent investigation that I found out that

she had money maybe due and payable or owing to her." Andrews and

Beets agreed that Andrews, in a contingent fee arrangement, would

help Beets pursue any benefits to which she might be entitled.

After his initial efforts proved unsuccessful, Andrews sought

the assistance of brothers Bruce L. and Randell C. Roberts,

attorneys who were practicing in Tyler, Texas. According to

Randell Roberts's affidavit that was admitted into the record of

the habeas proceeding in lieu of live testimony, Andrews arranged

for himself, Beets, and Randell Roberts to meet. Roberts recalled

that Andrews did most of the talking at that initial meeting, and

that:

With respect to potential life insurance benefits . . . Ms. Beets was able to provide . . . very little information. It was my impression that she believed at the time that there were probably some life insurance or pension benefits due to her, however, she appeared to know very little about the amount of the benefits in question or the potential insurance companies or other sources which would be responsible for these benefits.

Eventually, Randell Roberts passed the file to his brother

Bruce, who began looking for benefits. At Beets's trial, Bruce

Roberts testified that "when [he] first took the case, [Beets's]

primary concern was . . . with the fire insurance company." Bruce

Roberts also testified that Beets had what "looked like part of a

policy from the credit union in Dallas. She also knew that she had

or was asking me to check into pension benefits." Bruce Roberts

further testified, and later reemphasized in his affidavit which

was also admitted into the record of the habeas proceeding, that

51 Beets had no idea what benefits she may have been entitled to.

Despite Beets's ignorance about any benefits she may have been due,

Bruce Roberts pursued the claims, writing letters and making

telephone calls to anyone he thought might have owed Beets money as

a result of her husband's disappearance. Bruce Roberts's

efforts met with some success, and he had Jimmy Don declared dead

and secured a settlement with the City of Dallas for some pension

funds. In early June of 1985, before the settlement was finalized,

Jimmy Don's skeletal remains were unearthed from a wishing well in

front of the mobile home. Beets was subsequently arrested and

charged with murder.29 The case, as the majority notes, generated

significant local and national media attention. Andrews agreed to

represent Beets in the murder trial, and there is evidence that

from very early on in his representation of Beets, Andrews

envisioned profiting from the Betty Lou Beets story.

The same month that Beets was arrested and that Andrews began

his representation of Beets -- June 1985 -- Andrews associated

Gilbert M. Hargrave to assist in the trial. According to

Hargrave's testimony in the federal habeas proceeding, in June of

1985, long before the trial began and before Hargrave had agreed to

According to Randell Roberts's affidavit, after Beets was arrested, he and his brother "consulted with Mr. Andrews with respect to [their] further involvement in either of [the fire or the life] insurance matters. It was agreed that we would withdraw from further involvement in either matter . . . ." Additionally, Randell Roberts noted that "[i]n deciding to withdraw from these matters my brother and I knew that we might be called to testify on behalf of Ms. Beets during her trial. We did not think that it would be appropriate for us to continue to represent her in the other matters if we were needed to testify on her behalf." As noted above, Bruce Roberts did testify.

52 work on the case, Andrews stated, "`I'm going to get the book

rights and I'll give you twenty percent of the book rights.'"

Hargrave also testified that "[Andrews] thought the case was a

valuable case, that the book rights were valuable, that it was

notorious, famous, . . . and that it would generate a lot of

income-producing type of publicity for himself and myself."

Additionally, well before Beets's trial commenced, Andrews

undertook efforts to secure the media rights. The record of the

federal habeas proceeding contains two draft versions of a contract

assigning the media rights of the trial to Andrews's son.

Specifically, there is a typed draft of a media rights contract

dated September 23, 1985 and a handwritten draft of the same

document, presumably written sometime earlier. Thus, even though

the majority notes that "[o]n October 8, just after Beets's trial

commenced, she signed a contract transferring all literary and

media rights in her case to Andrews's son," Beets v. Collins,

F.3d , *5 (5th Cir. 1995) (en banc), it is clear from the

record that securing the media rights was on Andrews's mind

virtually from the beginning of his representation of Beets in

connection with her indictment for Jimmy Don's murder.30 As it

The majority comments that "Andrews testified at the federal habeas hearing that this contract was signed after negotiations fell through to obtain his fee from Beets's children." Beets, F.3d at *5. This is technically true; the contract was not signed until after the trial began, and Andrews did note that he and one of Beets's daughters "discussed finances prior to trial. It didn't come through." This, however, does not support the notion that the media rights contract was a last-second alternative to a fee. As noted above, the record clearly indicates that Andrews contemplated obtaining the media rights long before the trial started.

53 developed, the assignment of the media rights was the consideration

for Andrews's services in defending Beets.

During the trial, Andrews had two lines of defense. His

principal strategy during the guilt phase of the trial was simply

to show that Beets did not commit the murder. Andrews, however,

left little doubt that his secondary strategy was "to try to attack

the State's proof on their claim that [Beets] did it for

remuneration." As co-counsel Hargrave testified at the habeas

proceeding, "[t]he basic theory [of the defense] was that [Beets]

was not guilty, that she hadn't committed the act that she was

under indictment for and that if she actually had that she

certainly hadn't done so for remuneration."

Accordingly, during trial, Andrews repeatedly attempted to

make clear to the jury that it was his suggestion that Beets seek

out benefits resulting from Jimmy Don's disappearance. As noted

above, Andrews elicited testimony from Bruce Roberts that pursuing

benefits from Jimmy Don's disappearance was not suggested by Beets.

Moreover, during his examination of Beets, Andrews attempted to

show that Beets was not interested in any insurance benefits.31

Specifically, during his examination of Beets, the following colloquy took place:

Andrews: Whose suggestion was it that we try to collect retirement and insurance money?

Beets: I don't know that anybody suggested it.

Andrews: Was it some two years later?

Beets: Yes, it was about two years later.

Andrews: Was it a lawyer [who] suggested it?

54 Further, during his closing argument, Andrews again attempted to

convey that he had suggested pursuing insurance and pension

benefits, stating:

They're saying that [Beets] killed Jimmy Don Beets for insurance money. Ladies and gentlemen, she didn't even know anything about insurance, how much insurance he had or anything. Me and other lawyers inquired into this. Never called me in nearly two years . . . . Does that sound like somebody that's out after insurance money?

Andrews reemphasized this near the end of his argument, asking the

jury:

Did [the prosecutor] ever prove to you, people that she ever collected any of his retirement proceeds? . . . [T]he only proof that came in was a lawyer works for money. If a lawyer sees . . . there's a case there, they're going to go after it. And I probably should have gone after it faster. I'm certainly glad now I didn't.

Viewing the record in this case, there is no question that

attempting to show that Beets did not act for remunerative purposes

was an important aspect of Andrews's strategy. Andrews's efforts

to accomplish this objective, both in examination and in argument,

were neutralized to some extent by the court's repeated instruction

Beets: I came to you.

Andrews: Did I send you . . . to some other lawyer?

Beets: I talked to Randy Roberts in your office.

Andrews: Okay. Did you ever push me to just, "Let's get that money. Let's get that money and the whole bit." Did you ever do that?

Beets: No, I didn't expect to get any of it.

Additionally, near the conclusion of his examination of Beets, Andrews inquired whether Beets sought the settlement from the city "on my [Andrews's] recommendation?" Beets replied yes.

55 that "what the lawyers say is not evidence." As Beets's counsel,

Andrews, the only person besides Beets who could testify about

exactly how the pursuit of the insurance and retirement benefits

began, was precluded from testifying, and the jury was instructed

not to consider as evidence any statements which he made about his

involvement. Moreover, it is possible that the jury discounted the

statements that he did make at trial as impermissible efforts to

bolster his client's case.

Judge Higginbotham's view about the importance to Beets's

defense of Andrews's testimony, set out succinctly in his

concurrence to the panel opinion in this case, bears repeating:

Andrews's testimony could have significantly bolstered th[e] defense. . . . Andrews . . . could have told the jury that he mentioned to Beets the possibility of receiving benefits shortly after Jimmy Don's disappearance. Any later interest or inquiry into benefits could have been attributable to this post-murder information. Moreover, Andrews could have established Beets's lack of knowledge at a time closer to the murder than Roberts' evidence. Andrews's testimony was not merely cumulative. . . . It certainly would have been in Beets's best interest for Andrews to have testified.

Beets v. Collins,

(5th Cir.) (Higginbotham, J.,

specially concurring), reh'g en banc granted,

(5th

Cir. 1993).

B. The District Court's Findings

A full grasp of this case also requires a careful

consideration of the district court's findings. The district court

began its Order by noting that "it is apparent that the defense

counsel, E. Ray Andrews, fought for his client to the full extent

56 of his ability and energy. . . . Andrews is well known to the

Court as a competent and tenacious criminal lawyer."

Subsequently, the district court ruled against Beets on most

of her habeas claims, and then turned to "the issue which ha[d]

proven most troublesome . . . [Beets's] Sixth Amendment claim."

The court started its analysis by stating that "there are actually

two conflicts in this case, the conflict created by the media

rights contract . . . and the conflict arising from the fact that

the attorney should have been a witness instead of an advocate . .

. ." Although the district court stated that "the two conflicts

may be intertwined to a limited extent," it addressed the conflicts

separately.

After examining the framework for analyzing Sixth Amendment

challenges based on conflicts of interest, as set forth by the

Supreme Court in Cuyler v. Sullivan,

(1980), the

district court concluded:

Mere demonstration of an actual conflict is insufficient; the term `adverse' must mean that some negative impact on counsel's performance is required. After careful consideration, this court is of the opinion that an adverse effect on performance is demonstrated when counsel, laboring under an actual conflict of interest, pursues some course of conduct inconsistent with the best interest of his client.

Applying this standard, the district court first reemphasized

that Beets had "demonstrated two actual conflicts of interest in

this case, the media rights conflict and the witness/advocate

conflict." The court then turned to the adverse effect prong of

its analysis. As to the media rights conflict, the court "simply

d[id] not believe that [it] affected Andrews'[s] performance at any

57 conscious level. There is, of course, no adverse effect when there

is no effect at all." The court also noted, however, that "[t]he

possibility exists that the media rights contract motivated Andrews

at a subconscious level to remain in the case when he should have

withdrawn and testified for Petitioner. To that limited extent,

the two conflicts are intertwined." The district court did not

explore this relationship, finding instead that "the

witness/advocate conflict is a separate conflict which did in fact

adversely affect Andrews's performance. This is sufficient under

Cuyler without a detailed analysis of Andrews'[s] possible

motivation."

As to the witness/advocate conflict, the court described

Andrews's knowledge of Beets's pursuit of benefits resulting from

her husband's death as well as Andrews's efforts to communicate

that knowledge to the jury. The district court found that those

efforts were insufficient, stating that "Andrews obviously should

have known of his dual status as a witness and advocate prior to

trial. Andrews'[s] dual status should have also been apparent to

both the judge and district attorney as the trial unfolded."

Although the district court recognized that "the conflict never

occurred to any of the participants," it also noted that "[t]he

testimony that Andrews could have provided as an independent

witness related to an essential element of the State's charge of

murder for remuneration." Thus, the district court concluded that

"counsel pursued a course of conduct inconsistent with his client's

best interest when he accepted employment or failed to withdraw and

58 testify as a witness on [Beets's] behalf." Accordingly, the

district court granted Beets's habeas petition.

With a clear understanding of the factual background and

district court findings in the case, I turn to an examination of

the substantive issues in this appeal. To establish a Sixth

Amendment violation, the Supreme Court has held that a defendant

who did not raise the objection at trial "must demonstrate that an

actual conflict of interest adversely affected his lawyer's

performance." Cuyler,

. I first present what seem

to me to be the threshold inquiries in the context of an asserted

Sixth Amendment violation involving a conflict between the interest

of a lawyer and the interest of his client. I look then at the

question whether an actual conflict of interest existed between

Andrews and Beets, and at the question whether any such conflict

adversely affected Andrews's performance. Finally, I address why

the Cuyler standard, as opposed to the more stringent Strickland

standard, should apply to this case.

II. THE CONFLICT BETWEEN ATTORNEY AND CLIENT

A. The Threshold Inquiries

The Second Circuit's decision in Winkler v. Keane,

(2d Cir. 1993), cert. denied,

(1994), is

particularly instructive in this case because, unlike the many

cases addressing the actual conflict issue in the multiple

representation context, Winkler addresses a conflict between the

interest of the lawyer and the interest of his client. The issue

59 presented by Winkler was whether a contingency fee agreement

between a criminal defendant and his attorney created a conflict of

interest for the attorney resulting in a violation of the

defendant's Sixth Amendment right to effective assistance of

counsel. The court began by noting that an attorney has an actual,

as opposed to a potential, conflict of interest "when, during the

course of the representation, the attorney's and defendant's

interests diverge with respect to a material factual or legal issue

or to a course of action." Id. at 307 (emphasis added) (internal

quotation omitted). Having defined when an actual conflict of

interest exists between an attorney and his client, the court went

on to analyze the alleged conflict at issue:

Winkler argues that the contingency fee created an actual conflict of interest for trial counsel because Winkler's interests in effective representation were pitted against trial counsel's monetary interest. We agree. The contingency fee agreement in this case provided trial counsel with an extra $25,000 only if Winkler was acquitted or otherwise not found guilty. Thus, trial counsel had a disincentive to seek a plea agreement, or to put forth mitigating defenses that would result in conviction of a lesser included offense. Plainly the contingency fee agreement created an actual conflict of interest.

Id. at 307-08. It is important to note that the Winkler court

focused only on the objective divergence of interests between the

lawyer and his client to determine whether an actual conflict

existed. Having found such a conflict, the court went on to reject

Winkler's argument that proof of adverse effect was not needed to

grant relief under the Sixth Amendment. The court held that to

prove a Sixth Amendment violation, Winkler must meet the Cuyler

60 standard, and that standard required proof of an adverse effect.

See id. at 308.

Winkler argued that he was adversely affected by his counsel's

failure to initiate or to engage in plea bargaining and by his

counsel's failure to develop an intoxication defense to Winkler's

second degree murder charge. According to Winkler, both of these

alleged failures were motivated by his counsel's pecuniary interest

in total acquittal, which was the only outcome that would entitle

counsel to payment of the $25,000 bonus under the contingency fee

agreement. See id. at 309.

To address these adverse effect arguments, the court laid out

a test for "prov[ing] adverse effect on the basis of what an

attorney failed to do":

[a defendant first] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.

Id. (quoting United States v. Gambino,

(3d Cir.

1988) (quoting United States v. Fahey,

(1st Cir.

1985)), cert. denied,

(1989)).

In applying the test, the court looked first at the failure to

initiate plea bargaining. The court noted that the state court

(which had held a hearing on the defendant's attorney-conflict

claim) had found that in an alleged contract murder case, the

61 prosecution would have been highly unlikely to accept a plea

agreement. The court held, however, that:

Winkler need not show that a strategy would have been successful, only that it "possessed sufficient substance to be a viable alternative." Even if it is likely to be unsuccessful, the negotiation of a plea bargain in a case in which the evidence is strongly against a defendant is a viable alternative.

Id. (citation omitted). The court's determination that a viable

alternative had not been pursued did not end the adverse effect

inquiry. The court noted that the state court had found that plea

bargain possibilities were not pursued because Winkler had advised

his counsel that he was totally innocent and that he was not

interested in pleading to a lesser charge even if the opportunity

to do so were offered. See id. Thus, the Winkler court concluded

that "trial counsel did not pursue a plea bargain because Winkler

rejected this path, not because of trial counsel's monetary

interest in the outcome." Id. (emphasis added).

The court made the same kind of inquiry into the failure to

develop an intoxication defense. Because "Winkler had snorted

cocaine and smoked marijuana before the fatal event," the court

found that an intoxication defense also had sufficient substance to

be a viable alternative. See id. at 310. Nevertheless, the court

found that Winkler's counsel had discussed the possibility of a

conviction of lesser charges on the basis of intoxication, but

Winkler had rejected this alternative, again asserting his

innocence. See id. The court accepted the state court's factual

conclusion that "Winkler failed to establish that the fee

arrangement caused trial counsel not to seek a conviction for

62 lesser charges." Id. (emphasis added). The court ended by

concluding that Winkler had "failed to prove that trial counsel's

representation was adversely affected by the conflict of interest.

Thus, his Sixth Amendment right to counsel was not violated." Id.

In summary, the Winkler court made three distinct inquiries in

its Sixth Amendment analysis. First, the court determined whether

an actual conflict of interest existed between the lawyer and his

client by asking whether the attorney's and defendant's interests

diverged with respect to a material factual or legal issue or to a

course of action. Second, in addressing whether there had been an

adverse effect, the court inquired as to whether a viable

alternative might have been pursued. Third, the court made a

proximate cause inquiry, asking whether the viable alternative was

not pursued because of the conflict. A Sixth Amendment violation

was made out only if all three inquiries were affirmatively

answered -- i.e., the interests of the lawyer and his client

diverged, a viable alternative was not pursued, and the failure to

pursue the viable alternative was caused by the divergent

interests. Using this threshold framework, I proceed to Beets's

case.

B. Was there a Conflict?

As described above, the district court found that Beets

"demonstrated two actual conflicts of interest in this case, the

media rights conflict and the witness/advocate conflict." I will

address these two "conflicts" separately, turning first to the

media rights conflict.

63 1. Media Rights

A conflict of interest between Beets and Andrews existed not

later than the point at which the formal contract giving Andrews's

son the media rights to the Betty Lou Beets story was executed, and

perhaps earlier. The majority "joins other courts, scholars and

organizations of the bar who have uniformly denounced the execution

of literary and media rights fee arrangements between attorneys and

their clients during the pendency of a representation." Beets,

F.3d at *32. What the majority fails to acknowledge is the reason

for such uniform condemnation -- the extraordinarily high

probability that a media rights contract between counsel and client

will create a conflict of interest. When Andrews began his

representation of Beets on her murder charge, Texas's rules of

ethics provided that "[p]rior to conclusion of all aspects of the

matter giving rise to his employment, a lawyer shall not enter into

any arrangement or understanding with a client . . . by which he

acquires an interest in publication rights with respect to the

subject matter of his employment." State Bar Rules, art. X, § 9,

DR 5-104(B) (Texas Code of Professional Responsibility) (1984).32

Similarly, the American Bar Association's Model Code of Professional Responsibility and Model Rules of Professional Conduct prohibit (and continue to forbid) a lawyer from obtaining media rights to his client's case. See Model Rules of Professional Conduct Rule 1.8(d) (mandating that "[p]rior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation"); Model Code of Professional Responsibility EC 5-4 (mirroring the language of the Texas rule).

64 The reason for the rule is clear. Despite the majority's

assertions, media rights contracts are not prohibited primarily

because they "encourage counsel to misuse the judicial process for

the sake of his [own] enrichment and publicity seeking" or because

they "necessarily trade[] on the misery of the victim and his

family." Beets, F.3d at *32. While ensuring that the

judicial process is not misused and discouraging manipulation of

the suffering of others for profit are important goals,

commentators uniformly agree that the reason media contracts are

frowned upon is because "[a]n agreement by which a lawyer acquires

literary or media rights concerning the conduct of the

representation creates a conflict between the interests of the

client and the personal interests of the lawyer." Laws. Man. on

Prof. Conduct (ABA/BNA) 51:702 (1984) (emphasis added); see also

John Wesley Hall, Jr., Professional Responsibility of the Criminal

Lawyer § 12.13, at 414 (1987) ("A grave conflict of interest can

arise from a [media rights contract] . . . ." (internal quotation

omitted)); Geoffrey C. Hazard, Jr. & Susan P. Koniak, The Law and

Ethics of Lawyering 498 (1990) ("The reason for prohibiting such

arrangements is that what makes `good copy' does not necessarily

make a good defense."); Robert P. Schuwerk & John F. Sutton, Jr.,

A Guide to the Texas Disciplinary Rules of Professional Conduct,

27A Hous. L. Rev. 133 (1990) ("The lawyer's acquisition from a

client of publication rights to portrayals or accounts of the

subject of the representation will probably create a conflict of

interests."); Charles W. Wolfram, Modern Legal Ethics § 9.3.3, at

65 525 (1986) ("The problems [with media rights contracts] are two --

conflict of interests and the revelation of client information . .

. .").

The rules against media rights contracts are designed to

prevent the specific conflict resonating in this case; simply put,

"a lawyer in a criminal case who obtains from his client

television, radio, motion picture, newspaper, magazine, book, or

other publication rights with respect to the case may be

influenced, consciously or unconsciously, to a course of conduct

that will enhance the value of his publication rights to the

prejudice of his client." State Bar Rules, art. X, § 9, EC 5-4

(Texas Code of Professional Responsibility) (1984) (emphasis

added). Plainly, a media rights contract "`may place the lawyer

under temptation to conduct the defense with an eye on the literary

aspects and its dramatic potential. 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.'" Hall,

supra, § 12.12, at 414 n.19 (quoting ABA Standards, The Defense

Function Std 4-3.4, Commentary).33 In fact, a media rights contract

is so rife with conflict that under Texas's rules "client consent

See also Laws. Man. on Prof. Conduct, supra, at 51:702 (stating that the purpose of the prohibition is to "avoid the conflict of interest that would arise if the course of action that would further the client's cause would at the same time diminish the value of the lawyer's publication rights"); Schuwerk and Sutton, supra, at 134 (noting that a lawyer who is the beneficiary of a media rights contract "may be tempted to take various actions in the representation of the client based on their effect upon the value of the publication rights.").

66 will not cure a violation of [the prohibitions of media

contracts]." Schuwerk & Sutton, supra, at 134.

In the instant case, the media contract weighed on Andrews's

mind from the beginning of his representation. At the very least,

the contract placed him in a situation of divided interests.

Before the advent of the media rights contract, Beets's interest

lay in having Andrews withdraw as her counsel and testify at her

trial that he had initiated the idea of searching for Jimmy Don's

insurance and pension benefits. As her attorney, this was also

Andrews's interest because he was obligated to see to it that his

client's best defense was put forward. After the media rights

contract was confected, the interests of Beets and Andrews sharply

diverged. While Beets's interest remained in having Andrews

withdraw and testify, Andrews's interest now squarely lay in

remaining as her counsel because only then would he be entitled to

the potentially lucrative media rights. The record makes clear

that the district court did not err in finding that Beets

demonstrated that Andrews had an actual conflict of interest in

regard to the media rights contract.

2. The Lawyer as Witness

The district court also recognized a second conflict of

interest, Andrews's advocate/witness conflict. The district court

and the majority treat this conflict separately from the media

rights conflict. In a situation where a lawyer can provide

favorable testimony material to his client's case, his failure to

withdraw and testify may or may not stem from an actual conflict --

67 i.e., from a divergence of interests between the lawyer and his

client. If the failure to withdraw is caused, for example, by a

desire to stay in the case for the fee involved, a conflict of

interest may exist. As one commentator has suggested, when a

lawyer has a duty to withdraw and testify in favor of his client,

but does not do so, "[s]uch a decision would raise serious

questions about either the lawyer's competence or about the effect

of a conflict of interest." Wolfram, supra, § 7.5.2, at 381

(emphasis added). According to this commentator:

The conflict is between the lawyer's duty of loyalty to the client, which urges the lawyer to give the needed testimony, and the lawyer's economic instincts, which may lead the lawyer to remain in the case as advocate in order to continue earning a fee that otherwise would have to be abandoned.

Id. (emphasis added). In my view, while Andrews's role as both an

advocate and a potential witness may well have violated the

applicable ethical rules,34 its significance for this case lies not

The Texas standards of professional conduct in effect at the time of Beets's trial frowned upon an individual's acting as counsel in a case when he may also be called upon to serve as a witness. Specifically, the rule provided that:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he . . . ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and . . . shall not continue representation in the trial.

State Bar Rules, art. X, § 9, DR 5-102 (1984). The Rule provided for certain exceptions as well. See Texas State Bar Rules, art. X, § 9, DR 5-101(B) (1984).

The rationale behind this rule is somewhat different from the reasons animating the prohibition against media rights contracts. Thus, while "the dual role [of advocate and witness] may be detrimental to the client's interests because the lawyer

68 in its possible status as an independent conflict, but rather in

its relationship to the media rights conflict. That is, as the

district court recognized but did not explicitly resolve, the

question remaining in this case is whether the media rights

contract is what caused Andrews to remain in the case as counsel.35

C. Was Andrews's Representation Adversely Affected?

may be more impeachable on grounds of bias," it is also recognized that:

The most cogent rationale for the advocate-witness rule rests on protection of the fact-finding process. [The] adversary system works best when the roles of the judge, of the attorneys, and of the witnesses are clearly defined. Any mixing of those roles inevitably diminishes the effectiveness of the entire system.

Schuwerk & Sutton, supra, at 317-18 (internal quotations omitted). Other commentators agree, noting that:

The rationales [for rules limiting a lawyer by prohibiting media contracts and limiting a lawyer from acting as a witness] are simple. First, the attorney has built-in bias which must be argued to the finder of fact. Second, it is assumed that lawyers as advocates would bend the facts for the client or that the jury would give the lawyer's testimony too much credence. Third, the lawyer-witness role may inhibit effective cross-examination.

Hall, supra, § 12.10, at 412 (footnotes omitted).

Specifically the district court stated:

The possibility exists that the media rights contract motivated Andrews at a subconscious level to remain in the case when he should have withdrawn and testified for [Beets]. To that limited extent, the two conflicts are intertwined. However, this Court has determined that the witness/advocate conflict is a separate conflict which did in fact adversely affect Andrews'[s] performance. This is sufficient under Cuyler without a detailed analysis of Andrews'[s] possible motivation.

69 Under Cuyler, a defendant does not have the burden of showing

actual prejudice -- i.e., the defendant does not have to show that

the result of the trial probably would have been different. See

Strickland,

; United States v. Greig,

(5th Cir. 1992). Instead, the defendant needs to

demonstrate an adverse effect upon his representation, and

"Cuyler's adverse effect element establishes a relatively low

threshold for a petitioner to cross." Beets,

(Higginbotham, J., specially concurring). A limited presumption of

prejudice arises from a showing of adverse effect because, as the

Supreme Court has noted, "it is difficult to measure the precise

effect on the defense of representation corrupted by conflicting

interests." Strickland,

. To establish an adverse

effect on the basis of what an attorney failed to do, a defendant

must demonstrate that some plausible alternative defense strategy

or tactic -- "a viable alternative" -- might have been pursued.

See, e.g., Winkler,

.

In Beets's case, Andrews's failure to testify had an adverse

effect on her defense, as Andrews's testimony was clearly a viable

alternative. Throughout the trial, Beets attacked the remuneration

element of the State's case on which her capital murder conviction

rested. Andrews had significant testimony to offer bearing on the

critical issue of whether the killing of Jimmy Don was for a

remunerative purpose, specifically to obtain Jimmy Don's life

insurance proceeds and pension benefits. If the jury reasonably

70 doubted that Beets killed her husband for the insurance money, the

murder was not a capital offense.

The majority downplays the importance of Andrews's testimony

by referring to it as "cumulative." Beets, F.3d at *40, 41.

Of course, as mentioned, Beets does not need to show that Andrews's

testimony would have been successful, but only that it possessed

sufficient substance to be a viable alternative. See Winkler,

. Andrews's testimony clearly meets this standard, and

the suggestion that his testimony is cumulative is simply based

upon an erroneous reading of the record. As evidence of the

cumulative nature of Andrews's testimony, the majority points to

Beets's own testimony that she was unaware of Jimmy Don's death

benefits before she visited Andrews. But the jury may well have

discounted Beets's testimony because of its self-serving nature.

The majority also points to the testimony of Bruce Roberts,

who stated that more than a year after Jimmy Don's murder, Beets

seemed ignorant of his insurance and benefits. Roberts's

testimony, however, was damaging in certain respects to Beets's

defense. Although Roberts did testify that Beets's "primary

concern was . . . with the fire insurance company" and that Beets

never pressured him to collect money from the City of Dallas,

Roberts was also asked what Beets knew about benefits when she

first came to him. In response, Roberts stated:

At the time I talked to her, she had one -- well, it looked like part of a policy, as I recall, from the credit union in Dallas. She also knew that she had or was asking me to check into pension benefits. Basically, that's all the information she could give me.

71 Thus, Roberts did not definitively testify that Beets was ignorant

about the possibility of collecting benefits. Further, Roberts did

not, and could not have, testified that Andrews suggested to Beets

that they pursue Jimmy Don's insurance and pension benefits because

Roberts was not present at the meeting between Beets and Andrews at

which that suggestion was made.

Other than Beets, only Andrews could have told the jury that

he initiated the discussion regarding Jimmy Don's death benefits

with Beets, and only Andrews could have testified that she appeared

to lack knowledge of any such benefits. Further, only Andrews

could have testified that it was at his suggestion that those death

benefits were pursued. Any later interest or inquiry into benefits

by or on behalf of Beets could have been attributable to this

meeting between Beets and Andrews that took place long after Jimmy

Don's murder.

Similarly, the majority's invocation of Denny Burris's

testimony to downplay any adverse effect from the absence of

Andrews's testimony is erroneous. Burris, a disinterested witness,

stated that Beets inquired about Jimmy Don's insurance soon after

the murder. The suggestion is that because Beets discussed

insurance with Burris, a chaplain, the biased testimony of Andrews

was unlikely to have swayed the jury and its absence was

unimportant. First of all, it is again worth mentioning that any

suggestion that Andrews's testimony would not have been successful

to Beets's defense is irrelevant. Second, although Burris was a

chaplain, his assignment was to discuss with Beets the benefits due

72 to the widow of a fireman. "[I]t was not a mission to console a

widow with prayer where the widow's interest was insurance not

intercession." Beets,

(Higginbotham, J.,

specially concurring). Thus, the evidence of Beets's early focus

on insurance, as the State would have it, is not so compelling.

Finally, Burris's specific testimony did not show that Beets

already knew about Jimmy Don's insurance and pension benefits.

Rather, Burris testified that, several days after Jimmy Don's

disappearance, Beets "asked about insurance, if she would be

covered and things like that."

In short, it is all too clear that Andrews's testimony was a

viable alternative, and his failure to testify had an adverse

effect on Beets's defense. I agree with the assessment of Judge

Higginbotham in his special concurrence to the panel opinion:

Andrews's testimony was not merely cumulative. I cannot conclude that it would not have been helpful to Beets at trial. It certainly would have been in Beets's best interest for Andrews to have testified. Given the low threshold established by Cuyler, I would not reject [the district court's] conclusion that Andrews's failure to give this evidence at trial adversely affected the conduct of her defense.

(Higginbotham, J., specially concurring).

Our task is not yet complete, however, as the third Winkler

inquiry still remains on the table: whether Andrews's withdrawal

and testimony -- the "viable alternative" -- was not pursued

because of the media rights conflict. This is a fact-bound

question that the district court did not directly answer.36 After

I recognize that the ultimate question whether a conflict of interest existed here is a mixed question of law and fact, see

73 hearing evidence, the district court found that "Andrews obviously

should have known of his dual status as witness and advocate prior

to trial." The district court also concluded that Andrews "pursued

a course of conduct inconsistent with his client's best interest

when he accepted employment or failed to withdraw and testify as a

witness on Petitioner's behalf."

On the other hand, the court concluded that the media rights

contract did not affect Andrews's performance "at any conscious

level." The court noted, however, that "[t]he possibility exists

that the media rights contract motivated Andrews at a subconscious

level to remain in the case when he should have withdrawn and

testified for Petitioner. To that limited extent, the two

conflicts are intertwined." These statements suggest that the

district court did not definitively resolve whether Andrews's

failure to withdraw and testify was attributable in some fashion to

his actual conflict of interest arising from the media rights

contract.

The majority holds that there is no need to remand this case

to the district court for an explicit finding on whether the media

rights contract caused Andrews to fail to withdraw for two reasons.

First, the majority invokes, for the first time in the five years

that this case has been in federal court, the presumption of

correctness afforded by

(d) to the findings of fact

Strickland,

(citing Cuyler,

), but its fact-bound components, such as whether Andrews's failure to withdraw and testify was caused by the media rights contract, should be addressed in the first instance by the district court.

74 made by the state trial court judge on Beets's state habeas

petition. The state trial court found as a fact that

"[p]etitioner's grant of `book rights' to the son of her counsel

had no effect on the strategy of defense counsel." This finding

was based on the trial court's own personal recollection of the

trial and on Andrews's affidavit which stated that:

defense attorney had no conflict of interest throughout the proceedings by agreeing that book rights would be his entire fee, said defense attorney has no book rights, these rights were given to said attorney's son and were only given after the trial was into its third or fourth day, the State Bar of Texas has found said defense attorney committed no improprieties with regard to this matter.

At no point during the course of Beets's federal habeas proceedings

has the State sought to invoke the presumption of correctness

afforded by § 2254(d). Beets filed a motion for an evidentiary

hearing along with her federal habeas petition. When the State

filed its response (and an amended response) to Beets's petition,

it did not object to the hearing and, in responding to Beets's

claim of an actual conflict of interest, the State asserted:

Respondent denies that there was any conflict of interest in this case. However, because the Court has scheduled an evidentiary hearing on the issue, rather than argue the claim at this time, Respondent will rely on the facts developed at that hearing.

(emphasis added). Finally, the State (appellant in this court) did

not raise the preclusive effect of the state court's habeas

findings in any of the many briefs it has filed with this court.

Neither the panel opinion nor Judge Higginbotham's special

concurrence mentions § 2254(d) or Sumner v. Mata,

(1981), or any of its progeny. In a last ditch effort to avoid

75 dealing with the ambiguities in the federal district court's fact

findings, the presumption of correctness has been resurrected

despite the State's unwillingness to invoke it. Because no party

has addressed the presumption of correctness, we cannot determine

whether any of its exceptions applies. For example, we do not know

the position of the State or Beets on whether the factfinding

procedure employed by the state court was adequate to afford a full

and fair hearing or whether the material facts were adequately

developed at the state court hearing. See

(d)(3)

and (4). This case should not be decided at this late date on a

basis not raised by the parties.

The majority asserts as its second reason why, applying

Cuyler, there is no need to remand for an explicit finding on

causation the district court's statement that "the court simply

does not believe that the media rights contract affected Andrews'

performance at any conscious level." The majority ignores the

district court's recognition of a possible connection between the

media rights contract and what it termed the "witness/advocate

conflict" and its failure to resolve the ultimate question whether

they were related. The majority also ignores the contradiction

inherent in the district court's opinion in finding the

witness/advocate ethical problem to be an actual conflict (thereby

implying that it stemmed from a divergence of interests between

Andrews and Beets) while finding at the same time that the media

rights contract (the likely source of the divergence) had no

conscious effect on Andrews's performance.

76 In my view, because the district court did not explicitly

decide whether Andrews's failure to withdraw and testify was caused

by the actual conflict engendered by the media rights contract, the

wiser course is to vacate the district court's judgment granting

the writ and to remand the case so that the district court may

consider the question in the first instance. If the district court

determines on remand that Andrews's failure to withdraw and testify

was caused by the actual conflict of interest arising from the

execution of the media rights contract, with its powerful incentive

to remain in the case, then Beets will have successfully

demonstrated "that an actual conflict of interest adversely

affected [her] lawyer's performance," Cuyler,

, and

she will be entitled to habeas relief. The judgment granting the

writ should then be reinstated. If, on the other hand, the

district court concludes that Andrews's failure to withdraw and

testify was not caused by the actual conflict stemming from the

media rights contract, then that failure should be analyzed under

Strickland. On this record, there is no reasonable probability

that the outcome of Beets's trial would have been different, and

Beets has failed to satisfy the prejudice prong of Strickland. The

writ should then be denied.

D. The Majority Opinion

Before explaining why Cuyler, as distinguished from

Strickland, applies to this case, I turn to an examination of the

problems in the majority's approach to the existence of a conflict

in this case.

77 The majority is squarely faced with the district court's fact-

bound conclusion that Beets "demonstrated two actual conflicts of

interest in this case, the media rights conflict and the

witness/advocate conflict." The majority holds, however, that

"only a potential and not an actual conflict arose between Beets

and her lawyer." Beets, F.3d at *2.

The majority discounts the district court's conclusion that an

actual conflict existed by reason of the media rights contract,

noting that:

[T]he media rights contract posed a serious potential conflict of interest, [but] Beets failed to show how it hindered Andrews's presentation of her defense or prejudiced her by rendering the result of her criminal prosecution fundamentally unreliable. Beets has not asserted that Andrews manipulated the case to enhance publicity or that the contract generally clouded his good judgment. Beets has shown no actual influence of the media rights contract on the conduct of her defense.

Beets, F.3d at *34. Moreover, the majority later seems to

resurrect the vacated panel opinion, noting that two judges held in

that opinion "[a]s to the media rights contract, there was no

`actual conflict' . . . because . . . [t]he record does not

demonstrate that the contract induced Andrews to compromise his

zealous representation of Beets in favor of his own pecuniary

interest." Id. at *43.

Similarly, in discussing whether there was a conflict in

Andrews's failure to withdraw and testify, the majority states that

"[b]ecause Andrews's potential testimony for Beets was cumulative,

he was not a necessary witness for her defense and did not face a

substantial advocate/witness conflict." Beets, F.3d at *40-41.

78 Again, the majority seems to resurrect the conclusion of the panel

opinion that "Beets alleged, at most, a merely hypothetical or

speculative witness/advocate conflict, which did not materialize

into an actual conflict that forced Andrews to choose between his

self-interest and his duty to Beets." Beets, F.3d at *42.

The majority's conclusions fail on two levels. First, the

majority suggests that an actual conflict does not exist until an

attorney makes a "choice" between his interest and the interest of

his client. Building on the requirement of a "choice," the majority

seems to add (as did the panel) a scienter element to conflict

analysis, inserting a requirement, heretofore alien to the law,

that an attorney must consciously recognize that he is operating

under a conflict before that conflict can be said to actually

exist. Second and most noticeably, the majority conflates the

existence and effect elements of the analysis by concluding that a

conflict did not exist because Beets failed to demonstrate an

effect.

1. The Function of "Choice" in Conflict Analysis

The majority looks to statements by the Seventh, Tenth, and

Eleventh Circuits to support the panel's contention that an actual

conflict does not exist until an attorney makes a "choice" between

his interest and the interest of his client. See Beets, F.3d

at *42 (citing Stevenson v. Newsome,

(11th

Cir. 1985), cert. denied,

(1986); United States v.

Litchfield,

(10th Cir. 1992); United States v.

Acevedo,

(7th Cir. 1989); United States v.

79 Horton,

(7th Cir. 1988)). The concept of

"making a choice" is typically used in cases where an attorney has

a potential conflict (frequently between two clients) -- i.e., a

situation where interests have not yet diverged but could do so in

the future. The courts look to whether a "choice" has been made

only to signal that a divergence of interests has occurred -- i.e.,

only to signal that a potential conflict has become an actual

conflict. The central question is whether the interests have

diverged, and the concept of "making a choice" is an analytical

tool used to answer this question.

The cases cited by the majority support this proposition. See

Stevenson,

(noting that "[t]here is no evidence in

this case that [the attorney] was subject to divided loyalties

sufficient to establish an actual conflict of interest", thus,

rejecting Stevenson's allegations upon a determination that

divergent interests were absent from the case) (emphasis added);

Horton,

(focusing on the absence of divergent

interests in finding no conflict was created by counsel's

application for a position as a United States Attorney by stating

that "[i]n any event, a candidate for a high federal position in

his professional field would not advance his own interest by

demonstrating that he is a weak or unskilled attorney on behalf of

his client's interests."); Acevedo,

(failing to

find conflict, but noting that if Acevedo had alleged in her

affidavit that her attorney was involved with her in the criminal

activity, he "would have an obvious interest in preventing Acevedo

80 from testifying and thus implicating him in the illegal scheme");

Litchfield,

(rejecting defendant's claim that a

conflict of interest arose because trial counsel, concerned that

defendant was going to commit perjury, held an ex parte conference

with judge, noting that "[t]he situation presented counsel with a

difficult dilemma, and we cannot say that his ex parte discussion

with the district court was a violation of his ethical duty or

evidence of a conflict of interest.")

This focus on divergent interests to determine whether an

actual conflict of interest exists is also the focus in our

circuit: "`[a] conflict exists when defense counsel places himself

in a position conducive to divided loyalties.'" United States v.

Vaquero,

, 89 (5th Cir.) (quoting United States v.

Carpenter,

(5th Cir. 1985)), cert. denied,

(1993); accord Mitchell v. Maggio,

(5th

Cir.), cert. denied,

(1982).

In Beets's case, divergent interests existed, at the latest,

when Andrews executed the media rights contract. At that point, it

was in Beets's interest for Andrews to withdraw and testify, while

it was in Andrews's interest to remain as counsel so that he would

receive the value of the media rights.

The majority recognizes that disagreements between the

majority and this dissent exist not only on whether there was an

actual (as opposed to a potential) conflict but also on whether the

conflict should be judged from an objective standpoint. Beets,

F.3d at *45. In my view, it is important to be clear that

81 determining whether divergent interests are present such that an

actual conflict exists contemplates an objective evaluation of the

situation in which counsel is placed.37 As the Ninth Circuit

recently noted, "[t]he existence of an actual conflict cannot be

governed solely by the perceptions of the attorney; rather, the

court itself must examine the record to discern whether the

attorney's behavior seems to have been influenced by the suggested

conflict." Sanders v. Ratelle,

(9th Cir. 1994).

This objective evaluation makes perfect sense, for if the rule

were as the majority suggests, counsel's actions benefiting himself

and harming his client would not be actual conflicts, irrespective

of their effect on the proceedings, as long as counsel was too

obtuse, insensitive, or selfish to recognize that the pursuit of

his own goals was coming at the expense of his client's defense.

As the Supreme Court commented in an analogous context, "[i]t is

unlikely that [an attorney] would concede that he continued

improperly to act as counsel." Wood v. Georgia,

, 265

n.5 (1981) (describing how the conflict of interest was properly

presented when the lawyer who allegedly had the conflict of

interest had prepared the brief and the petition for certiorari).

The fact that Andrews arguably chose to continue his representation

thoughtlessly as opposed to deliberately does not obviate the fact

To say that the inquiry whether an actual conflict exists contemplates an objective evaluation of the situation in which counsel is placed, i.e., that counsel's subjective perceptions cannot control the outcome of that inquiry, is supported by the Court's conclusion that the question whether a conflict exists is a mixed question of law and fact. See Cuyler,

.

82 that given the possible decisions he could have made as an

attorney, he undertook a course of action that benefited himself

while hindering Beets's defense. Simply put, an actual conflict is

demonstrated when a defendant objectively shows that his interest

and his attorney's interest diverged with respect to a material

factual or legal issue or to a course of action, and such a

divergence occurred in this case.38

2. Separating the Existence of a Conflict from the Effect of a Conflict

The majority also contends that there was no actual conflict

in the context of the media rights contract "because . . . [t]he

record does not demonstrate that the contract induced Andrews to

compromise his zealous representation of Beets in favor of his own

pecuniary interest." Beets, F.3d at *43. Similarly, in the

lawyer as witness context, the majority contends that there was no

actual conflict "[b]ecause Andrews's potential testimony for Beets

Until the panel's decision (which echoes in the majority opinion), there had been no question that the conflict inquiry is objective in the ordinary civil context. For example, in situations where a law firm is alleged to have a conflict of interest stemming from serial representation, whether the attorneys in that firm recognized or even knew about the conflict is not controlling. Instead, if an objective standard is met, i.e. if the "prior representations are substantially related to the present case," then "the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation." In re American Airlines,

(5th Cir. 1992), cert. denied,

(1993). In such cases, there is little doubt that a law firm could not avoid disqualification by protesting that it neither believed nor realized that it had a conflict of interest. See In re Martin,

(1st Cir. 1987) (noting that in examining whether an actual conflict of interest exists, "[s]incerity or protestations of good faith, no matter how genuine, will not be enough. The test must be more [of] an objective one.").

83 was cumulative, [and] he was not a necessary witness for her

defense." Id. at *40. As I have pointed out above, this

conclusion has no factual support in the record. As a legal

conclusion, it has no support in the case law surrounding Cuyler;

determining whether there was an actual conflict (as distinguished

from determining whether the Sixth Amendment has been violated)

does not require a showing of an adverse effect.

As the majority concedes, Cuyler incorporates a standard less

rigorous than Strickland. See Strickland,

(noting

that unlike general ineffective assistance of counsel claims, the

criminal justice system "maintain[s] a fairly rigid rule of

presumed prejudice" in the conflict of interest context). The

reason for this lighter burden in conflict cases is clear. As the

Supreme Court has noted, it "is difficult to measure the precise

effect on the defense of representation corrupted by conflicting

interests," Strickland,

, and accordingly, the Court

has "refused to indulge in nice calculations as to the amount of

prejudice attributable to the conflict." Cuyler,

(internal quotation omitted). The majority, however, engages in

such a calculation to determine whether a conflict even existed.

The question of whether there actually was a conflict plays an

important role in separating cases where interests diverge -- i.e,

where the attorney places his own or another's interest above the

client's interest -- from those situations where the conflict

remains potential. Whether the conflict actually affected the

representation is a separate inquiry from the question of whether

84 there was an actual conflict. Even when addressing whether a

conflict had an adverse effect, the degree of prejudice caused by

the conflict is not material once any real effect is shown. See

Cuyler,

("[A] defendant who shows that a conflict

of interest actually affected the adequacy of his representation

need not demonstrate prejudice.").39

The rule that the majority espouses goes even further than

that prohibited in evaluating actual effect. The majority

collapses the question of effect into the question of actual

conflict. Just as it is improper to evaluate a foregone strategy's

potential for success when determining whether there is an adverse

effect, it is also improper to evaluate that strategy's potential

for success when determining whether there is an actual conflict of

interest.40

Circuit courts have frequently applied this principle. Thus, as the First, Second, and Third Circuits have noted:

[a defendant first] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.

Winkler,

(quoting Gambino,

(alteration in original) (emphasis added)); accord Fahey,

; see also Foxworth v. Wainwright,

, 1077 n.7 (5th Cir. 1975) (noting, before Cuyler or Strickland, that "[i]f an actual, significant, conflict is found . . . the degree of prejudice is not to be considered.").

There had been some question in this court about the other aspect of the test articulated in Cuyler; that is, whether a petitioner was required to show that an actual conflict of

85 III. WHICH STANDARD -- CUYLER OR STRICKLAND?

The majority holds that Strickland (rather than Cuyler)

governs the analysis of Beets's claim. The majority contends

that Cuyler's analysis is applicable only to conflicts stemming

from multiple representation, and it opines that "Strickland

offers a superior framework for addressing attorney conflicts

outside the multiple or serial client context." Beets, F.3d

at *14. First, I disagree with the majority's conclusion that

Cuyler and the other Supreme Court cases addressing attorney

conflicts support its decision to limit Cuyler to the multiple

representation context.

Second, drawing on those cases and on some of the cases at

the circuit level that apply Cuyler to attorney-client conflicts,

I would apply Cuyler to a conflict between the attorney and his

client which has a highly particularized and powerfully focused

source, of a kind not frequently or normally encountered in the

practice of law. It is these exceptional situations, where the

divergence between the lawyer's self-interest and his client's

interest actually affected his representation. In Baty v. Balkcolm,

(5th Cir. Unit B Nov. 1981), cert. denied,

(1982), we stated our belief that "a requirement of proof of adverse effect of a conflict of interest on counsel, in addition to proof of an actual conflict, was not the intent of the [Supreme] Court in Cuyler." Baty,

n.13. After the Supreme Court's decision in Strickland, we revisited that determination, holding that "proof of some adverse effect is required before prejudice will be presumed from a showing that the attorney had an actual conflict of interest." Nealy v. Cabana,

(5th Cir.), cert. denied,

(1986). In none of those cases, however, did we suggest a different standard for determining the first prong of the Cuyler inquiry -- whether there was an actual conflict.

86 interest poses an extraordinary threat to the lawyer's duty of

loyalty, that warrant the protection of Cuyler. As this court

and other courts have recognized, the conflict stemming from a

media rights contract is such a conflict, as are the conflict

arising from the kind of contingent fee arrangement at issue in

Winkler and the conflict arising from an attorney's involvement

in the allegedly criminal conduct of his client. If we reserve

Cuyler for extraordinary attorney-client conflicts of that sort,

not normally encountered in law practice, and we apply Strickland

to alleged deficiencies in an attorney's performance having their

sources in the more common incidents of the attorney-client

relationship, we avoid having the Cuyler exception swallow the

Strickland rule. At the same time we preserve the benefit of the

Cuyler inquiry for those exceptional cases that lie at the heart

of the principles animating it.

A. Conflict of Interest Jurisprudence

To test the majority's hypothesis that Cuyler applies only

to multiple representation cases, I look first at what the

Supreme Court and other courts have said about attorney

conflicts. It is well-settled that "[w]here a constitutional

right to counsel exists . . . there is a correlative right to

representation that is free from conflict of interest." Wood,

; see also Cuyler,

; Holloway v.

Arkansas,

(1978). The Supreme Court revisited

Cuyler in Wood v. Georgia,

(1981), and it applied

its framework to a conflict created by a third-party's payment of

87 counsel. After examining the record, the Court noted that the

defendants' employer had paid for the defendants' legal

assistance, for the defendants' bond fees, and for some of the

other fines that the defendants incurred, but it had failed to

pay the fines which resulted in the defendants' incarceration.

Wood,

. The Court further observed that:

The fact that the employer chose to refuse payment of these fines, even as it paid other fines and paid the sums necessary to keep petitioners free on bond in this case, suggests the possibility that it was seeking -- in its own interest -- a resolution of the equal protection claim raised [in the case].

(footnote omitted). The Court recognized that because the

attorney was being paid by the employer, and was therefore the

employer's agent, there was a "clear possibility of conflict of

interest."

In light of this possibility, the Court remanded

the case to the state court, instructing the lower court to apply

the Cuyler framework and to determine "whether the conflict of

interest that th[e] record strongly suggests actually existed at

the time of the probation revocation or earlier."

.

The Supreme Court next discussed conflicts of interest in

Strickland. In that case, the Court was called upon to determine

the "proper standards for judging a criminal defendant's

contention that the Constitution requires a conviction . . . to

be set aside because counsel's assistance at the trial . . . was

ineffective." Strickland,

.

Notably, when describing the standard for evaluating the

prejudicial effect of a counsel's failings, the Court

distinguished ineffectiveness claims predicated on conflicts of

88 interest. Specifically, the court noted that these claims

warranted a limited presumption of prejudice, stating that

"prejudice is presumed when counsel is burdened by an actual

conflict of interest." Strickland,

(citing

Cuyler,

). When there is an actual conflict,

the Court emphasized that "counsel breaches the duty of loyalty,

perhaps the most basic of counsel's duties."

Additionally,

the Court found that a limited presumption of prejudice was

warranted because "it is difficult to measure the precise effect

on the defense of representation corrupted by conflicting

interests."

Further, the Court reasoned that "[g]iven the

obligation of counsel to avoid conflicts of interest and the

ability of trial courts to make early inquiry in certain

situations likely to give rise to conflicts, it is reasonable for

the criminal justice system to maintain a fairly rigid rule of

presumed prejudice for conflicts of interest."

(citation

omitted).

The Supreme Court has not specifically addressed whether

Cuyler applies to cases involving conflicts stemming from sources

other than multiple representation. See Illinois v. Washington,

(1984) (White, J., dissenting from denial of

certiorari). Nevertheless, as the majority concedes, this court,

as well as every circuit court facing the issue, has applied the

rule of Cuyler to many types of conflicts of interest.41 In

For cases applying Cuyler, see Garcia v. Bunnel,

, 1198 n.4 (9th Cir. 1994) (applying the Cuyler standard to conflict created by attorney accepting job with prosecution

89 fact, the Seventh, Ninth, and Eleventh Circuits have applied the

Cuyler framework to conflicts stemming from media rights

contracts. See United States v. Marrera,

(7th Cir. 1985) (employing Cuyler framework to claim predicated

on "conflict of interest between [the] lawyer's financial

interest in proceeds from the movie rights and [defendant's]

interest in acquittal"), cert. denied,

(1986);

Zamora v. Dugger,

(11th Cir. 1987) (noting that

"[t]he standard developed in Cuyler has been applied to cases in

office prior to trial, but noting that "[i]t is not logically necessary that the approach of [Cuyler] also apply to conflicts between a defendant's and the attorney's own personal interests; however, we conclude that precedent so requires"), cert. denied,

(1995); Winkler v. Keane,

(2d Cir. 1993) (applying Cuyler to conflict created by attorney working on contingency fee in criminal case), cert. denied,

(1994); United States v. Sayan,

(D.C. Cir. 1992) (upholding application of Cuyler's adverse effect test to alleged conflict created by lawyer's fear of antagonizing judge); United States v. Michaud,

(1st Cir. 1991) (analyzing conflict of interest stemming from attorney's association with prosecuting IRS under Cuyler framework); United States v. Horton,

(7th Cir. 1988) (applying Cuyler to conflict generated by defense attorney's candidacy for U.S. Attorney); United States v. Andrews,

(10th Cir. 1986) (finding that Cuyler applies in situations involving "counsel's ability to represent his client fairly, loyally or impartially"), cert. denied,

(1987); Roach v. Martin,

, 1479 (4th Cir.) (applying Cuyler when alleged conflict of interest was rooted in fact that defense attorney was under investigation by state bar grievance committee), cert. denied,

(1985); Ware v. King,

(5th Cir. 1982) (per curiam) (using Cuyler framework to analyze claim of conflict of interest stemming from separate civil and criminal lawsuits pending between defense counsel and prosecutor), cert. denied,

(1983); United States v. Knight,

(6th Cir. 1982) (per curiam) (undertaking Cuyler analysis in evaluating claim of conflict of interest stemming from attorneys' knowledge that they were under investigation for stealing documents during trial), cert. denied,

(1983).

90 which defendants argue that their lawyers were more interested in

publicity than in obtaining an acquittal," and employing the

Cuyler analysis); United States v. Hearst,

(9th Cir. 1980) (recognizing that the conflict in Cuyler was

based on multiple representation, and observing that the case

before it was "based on private financial interests" of the

lawyer, but applying Cuyler because "[t]hese differences are

immaterial."), cert. denied,

(1981).

Nevertheless, the majority boldly asserts that all of these

other courts have misread Cuyler and the Supreme Court's

subsequent cases, stating that "[o]ne cannot read Cuyler [as]

analyz[ing] conflicts of interest in a context broader than that

of multiple client representation." Beets, F.3d at *15. As

noted above, however, the Supreme Court did just that in Wood,

applying Cuyler to a conflict of interest stemming from the fact

that defendants' counsel was being paid by a third party. The

majority attempts to distinguish this case by stating that the

"lawyer was at least in the functional equivalent of a joint

representation. . . . Both the theater and the employees

expected him to advance their interests, yet to serve one might

require him to fail the others, while doing nothing could harm

both." Beets, F.3d at *18. The majority forces Wood into

the multiple representation category by focusing on the common

denominator of all conflicts: divided loyalties or divergent

interests between two or more entities.

B. Divided Loyalties: The Ethical Principles

91 The majority accurately notes that representation of two or

more clients whose interests are best served by divergent

litigation tactics presents a situation in which an attorney's

loyalties may be pulled in different directions by his various

clients. When such a situation arises, an attorney may be forced

to choose the interest of one client at the expense of the

interest of the other client, or the attorney may choose to do

nothing and neglect the interests of both clients. See Geoffrey

C. Hazard & W. William Hodes, 1 The Law of Lawyering § 1.7:101

(2d ed. Supp. 1992); Model Rules of Professional Conduct Rule

1.7, 1.9 (specifically addressing conflicts of interest arising

from concurrent representation and serial representation).

Multiple representation situations, however, are not the

only circumstances in which a conflict of interest may test an

attorney's duty of loyalty. A lawyer's duty of loyalty may also

be compromised when his own interests diverge from his client's

interests. See Wolfram, supra, § 7.1.3, at 317 ("The principle

of loyalty runs throughout conflicts thinking but is most

prominent in the areas of simultaneous conflicts and conflicts

involving the lawyer's personal interests."). In fact, the

general rule against conflicts of interest provides that "[a]

lawyer shall not represent a client if the representation of that

client may be materially limited by the lawyer's responsibilities

to another client or to a third person, or by the lawyer's own

interests." Model Rules of Professional Conduct Rule 1.7(b); see

also Wolfram, supra, § 7.1.2, at 315 (describing how an older

92 version of the rules governing conflicts "deal[t] with two

central situations -- when a lawyer's personal interests clash

with those of a client and when a lawyer represents at the same

time clients with differing interests"). This potential for a

conflict rooted in the attorney's self-interest is so severe that

the Model Rule of Professional Conduct 1.8 is devoted almost

entirely to prohibitions and restrictions aimed at preventing

such conflicts.42 The reason for these rules is clear. Just as

an attorney's loyalty may be pulled in different directions by

clients' divergent interests, an attorney's loyalty can be sorely

tested when his own self-interest runs counter to the interests

of his client.

Thus, the majority's attempt to draw the Cuyler line at

multiple representation is ill-considered, for there is no

logical reason why the distinction could not be used to classify

all conflicts (including those involving the attorney's self-

interest) as "multiple representations." Simply put, there is no

For example, Model Rule 1.8(a) restricts an attorney from entering into business transactions with a client. Similarly Rule 1.8(d) prohibits an attorney from acquiring media rights from a client prior to the conclusion of the representation of that client. Rule 1.8(f) severely restricts the ability of an attorney to receive compensation from someone other than his client, and Rule 1.5(d)(2) prohibits attorneys from entering into contingent fee arrangements in criminal cases. See also State Bar Rules, art. X, § 9, DR 5-101(A) (Texas Code of Professional Responsibility) (1984) ("[A] lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."); Hazard & Hodes, supra, § 1.8:101 (noting that many of the transactions prohibited in Model Rule 1.8 "involve transactions in which the lawyer's own self-interest threaten to adversely affect the quality of the representation to be provided").

93 intuitive reason why the Cuyler line should be drawn at conflicts

where the interests of only third parties cause the divergence

facing the attorney, as distinguished from conflicts where the

interest of the attorney himself causes the divergence that he

confronts. Indeed, there is a powerful intuitive reason why, in

some situations, that line should not be (and has not been) drawn

there. There are exceptional conflicts involving the attorney's

self-interest that, human nature being what it is, are far more

likely to impair the lawyer's ability to satisfy his duty of

loyalty to his client than are the more ordinary conflicts

between clients.

C. Where Should the Cuyler Line Be Drawn?

I recognize that not every conflict of interest pitting a

lawyer's self-interest against his client's interests should

trigger the analysis outlined in Cuyler. As one commentator

notes, "[i]n a sense, every representation begins with a lawyer-

client conflict. If the representation is for a fee, the

lawyer's economic interest will be to maximize the amount of the

fee and the client's will be to minimize it." Wolfram, supra, §

7.1.1, at 313. Conversely, if the representation is for a flat

fee, the attorney's interest will be to minimize the amount of

time spent on the case, and the client's interest will be to

maximize it. Similar conflicts inure in any contract for the

sale of goods or services; the seller's interest is to maximize

the amount the buyer spends and minimize his own costs, and the

94 buyer's interest is to minimize the amount that he spends and

maximize the quality of the goods or services.

Thus, the Cuyler exception would swallow the Strickland rule

if it were applied to every case in which a criminal defendant

complains that his lawyer failed to investigate a witness or a

defense, neglected to perform an experiment, did not hire a

witness, or otherwise failed to take action because the attorney

decided that it was not worth the time or the expense. We have

recognized that Cuyler is not meant to cover these types of

cases. Strickland appropriately governs claims for failure to

investigate43 and the like, and courts have had little difficulty

in treating such claims under Strickland's ineffectiveness

rubric. See, e.g., Williams v. Calderon,

(9th

Cir. 1995) (refusing to apply Cuyler when a defendant alleged

that "the fact that payment for any investigation or psychiatric

services could have come from counsel's pocket forced counsel to

choose between [the defendant's] interests and his own"); United

States v. Zackson,

(2d Cir. 1993) (finding that

Strickland, not Cuyler, was applicable to a claim that defense

counsel was "plagued by a conflict of interest, namely that he

was under enormous time constraints in regard to prior trial

commitments" (internal quotations omitted)); Yohey v. Collins,

(5th Cir. 1993) (finding that a failure to hire

Strickland itself was a claim for failure to investigate, and in adopting its test, the Court noted that Strickland's standard "require[d] no special amplification in order to define counsel's duty to investigate." Strickland,

.

95 an expert was not a conflict in the Cuyler sense and applying

Strickland to the alleged conflict).44

In addition to conflicts that are more properly treated

under Strickland as claims about competence and diligence, there

are other attorney-client conflicts frequently or normally

encountered in the practice of law that will be better handled

under Strickland. For example, the conflict claimed to exist in

United States v. Sayan,

(D.C. Cir. 1992),

involving a lawyer who allegedly failed to request a continuance

because he was afraid the judge would take action against him and

his law firm if he made such a request, would arise with some

frequency, as would the conflict claimed to exist in Zamora v.

Dugger,

(11th Cir. 1987), that the lawyer was

more concerned with publicity than with his client's fate. Both

these charges can be made, with some credibility, in a good

number of cases, and where they form the basis for a claim for

In differentiating between conflicts that merit the more stringent test of Strickland and conflicts that warrant the Cuyler methodology, courts may, as instructed to do in Strickland when determining the reasonableness of attorney conduct, receive some guidance from prevailing norms of professional responsibility. Ineffective assistance claims rooted in the failure to investigate or to devote proper attention to a case have rightfully been treated under the uncontroversial standards of competence and diligence. See Strickland,

; Zackson,

; Model Rules of Professional Conduct Rule 1.1. ("A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."); Model Rules of Professional Conduct Rule 1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a client.").

96 post-conviction relief, they should be evaluated under Strickland.

While the great majority of alleged attorney-client

conflicts arising in post-conviction proceedings -- those

frequently or normally encountered in the practice -- will be

better handled under Strickland, there are exceptional conflicts

between an attorney's self-interest and his client's interest,

stemming from highly particularized and powerfully focused

sources, of the sort not normally encountered in law practice,

that demand the application of Cuyler. A media rights contract

is such a source,45 as are the kind of contingent fee arrangement

at issue in Winkler and an attorney's involvement in the

allegedly criminal conduct of his client. These circumstances

present situations so fraught with the temptation for the lawyer

to sacrifice his client's best interest for his own benefit that

they constitute particularly serious threats to the duty of

loyalty. Not coincidentally, the Supreme Court and lower courts

have applied the Cuyler presumption to these very types of

cases.46

The majority states that "[t]he dissent has agreed that a witness/advocate conflict alone is not the sort that even under their approach should be governed by a Cuyler inquiry." Beets, F.3d at *43. To the contrary, a witness/advocate "conflict" having its source in a media rights contract, as may be the case here, is exactly the kind of conflict that should be governed by Cuyler.

For examples of these cases see Wood,

(applying Cuyler to a case in which a defense attorney was paid by a third party with a possibly conflicting interest); Winkler,

(using Cuyler in a case where a criminal defense attorney was paid on a contingency fee basis); Marrera,

& n.6 (employing Cuyler's framework to a conflict based on a lawyer's financial interest in media rights); Hearst,

The majority posits that in these cases, unlike in the

multiple representation context, the risk of prejudice is not

plain, and that "[w]hen the duty of loyalty is challenged by an

attorney's self-interest, the range of possible breaches . . . is

virtually limitless." Beets, F.3d at *26. I disagree.

The risk is all too plain. Further, Cuyler has been the law for

fifteen years, and it cites precedents at the circuit level

(including this circuit's decision in Foxworth v. Wainwright,

(5th Cir. 1975)), that are even older. The inescapable

fact is that the courts have not had difficulty with the boundary

problems described by the majority, as courts have been able to

separate ordinary ineffective assistance claims (even those

dressed in conflict language) from the exceptional cases that

warrant the Cuyler standard. But even if we do encounter

problems with cases at the boundaries, that is no reason to

change the rule in a case that lies at the heart of the

principles animating Cuyler.

In short, there is no authority whatsoever for limiting

Cuyler to the multiple representation situation, and, as many

courts have recognized, it makes no sense to do so in those

exceptional cases where an attorney's self-interest poses a

serious threat to the duty of loyalty.

IV. SUMMARY

at 1193 (same); Acevedo,

(employing the Cuyler test to a situation in which an attorney may be involved in the criminal conduct that his client is alleged to have committed).

98 Under Cuyler, relief is proper on a Sixth Amendment claim of

ineffective assistance of counsel when a defendant

"demonstrate[s] that an actual conflict of interest adversely

affected his lawyer's performance." Cuyler,

. In

the instant case, Andrews was faced with an actual conflict

because, while Beets's interest lay in having Andrews withdraw

and testify, Andrews's interest lay in remaining as her counsel,

because only then would he be entitled to the potentially

lucrative media rights. Additionally, because Andrews did not

withdraw and testify, Beets's representation was adversely

affected. A Sixth Amendment violation will be shown if the

district court concludes that the conflict was the cause of

Andrews's failure to withdraw and testify. I would vacate the

district court's judgment and remand with instructions to resolve

that issue. If the district court concludes that the conflict

was the cause of Andrews's failure to withdraw, then a Cuyler

claim has been successfully established and the judgment granting

the writ would be reinstated. If the district court concludes

that the conflict was not the cause of Andrews's failure to

withdraw, then that failure should be evaluated under Strickland.

Under that test, Beets has failed to show prejudice, i.e., that

the result of her trial would have been different had Andrews

withdrawn and testified. In that case, the writ should be

denied.

99