Judicial Notebook

Paul Cortez was convicted of murdering Catherine Woods. On appeal, Cortez argued that he was ineffectively represented by counsel at trial because one of his attorneys had a conflict of interest. The attorney had been indicted on charges that she had smuggled drugs to one of her clients in prison — thus, she faced the prospect of being prosecuted by the same prosecutor's office as her client. These facts presented the troubling possibility that the attorney's interest in how her own case would be prosecuted would constrain the zeal with which she defended her client (State of New York v. Cortez).

At a pretrial hearing to address the conflict, the trial judge noted the conflict (but said that she was "not quite sure [she saw] it") and asked Cortez to indicate that he understood what was "going on" and that he desired to go forward despite the conflict. Cortez responded: "Yes, I understand that. And she has not compromised this case on account of her own."

Defendants are allowed to waive conflicts if they do so in a manner that is "knowing, intelligent, and voluntary" (Edwards v. Arizona, 1981). The judges on the appellate panel disagreed as to the specifics of what should be required of a trial court judge who accepts a defendant's waiver. They did, however, hold that the exchange between Cortez and the trial judge was not sufficient to constitute an adequate waiver of the attorney's conflict. Nonetheless, they concluded that there was no evidence to show that the conflict had resulted in any deficits in the defense of Cortez's case.

In theory, when a conflict is disclosed, the affected party can evaluate the disclosure, discount any conflicted advice and make an objective determination about the value of continued representation. But psychologists have shown that it is difficult to sufficiently discount conflicted advice and assess the advisor objectively (see review in Loewenstein, Cain, & Sah, 2011).

Just as jurors have difficulty ignoring inadmissible testimony or discounting coerced confessions, legal clients may have difficulty ignoring advice even when it has been offered by an advisor with a conflict. It may be hard to adjust away from the anchor provided by the advice. And, even more insidiously, when an advisor discloses a conflict, the advisor can seem even more trustworthy.

As a client considers whether to waive a conflict, he or she may be disinclined to second-guess his or her decision to hire the attorney or to act in a way that would signal distrust in the lawyer. The fundamental attribution error can mean that the client underestimates the ways in which the advisor's judgment may be influenced by the situation presented by the conflict. And the client may overweigh the certain and immediate loss of trial counsel as compared with the nebulous and future potential effects of the conflict (Cameron & Miller, 2009).

Ironically, disclosure might even increase the extent to which the conflict biases the attorney's advice. In particular, psychologists have found that acting ethically at an earlier time can result in less ethical behavior at a later time (Monin & Miller, 2001). But while disclosure itself may not cure the conflict, the prospect of disclosure may motivate advisors to avoid conflicts at the outset when they can (Sah & Loewenstein, 2014).

Legislatures, bar ethics committees and courts — like the courts that considered the Cortez case — should find this recent psychological research useful as they consider how to address conflicts of interest, the effects of disclosure and the quality of client waivers.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).

References

  • Cameron, J. S., & Miller, D. T. (2009). Ethical standards in gain versus loss frames. In D. De Cremer (Ed.), Psychological perspectives on ethical behavior and decision making (pp. 91–106). Charlotte, NC: Information Age Publishing.
  • Loewenstein, G., Cain, D. M., & Sah, S. (2011). The limits of transparency: Pitfalls and potential of disclosing conflicts of interest. American Economic Review, 101, 423–428.
  • Monin, B., & Miller, D. T. (2001). Moral credentials and the expression of prejudice. Journal of Personality and Social Psychology, 81, 33–43.
  • Sah, S., & Loewenstein, G. (20140). Nothing to declare: Mandatory and voluntary disclosure leads advisors to avoid conflicts of interest. Psychological Science, 25, 575–584.