Commonwealth v. Cousin ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12252
COMMONWEALTH vs. JOSEPH COUSIN.
Suffolk. September 5, 2017. - January 11, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, &
Kafker, JJ.
Conflict of Interest. Attorney at Law, Conflict of interest.
Practice, Criminal, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on September 4, 2002.
The cases were tried before Nancy Holtz, J., and a motion
for a new trial, filed on March 1, 2013, was heard by Janet L.
Sanders, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Amanda Teo, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, also present) for the Commonwealth.
Robert F. Shaw, Jr., for the defendant.
LOWY, J. Following a jury trial in the Superior Court, the
defendant, Joseph Cousin (Cousin), was convicted of murder in
the second degree. Cousin filed a motion for a new trial,
2
claiming that his trial counsel was ineffective because he was
burdened by an actual conflict of interest. A Superior Court
judge granted Cousin's motion for a new trial. The Commonwealth
appealed, and we allowed its application for direct appellate
review.1 The issue before this court is whether Cousin presented
sufficient evidence to establish that his trial counsel was
burdened by an actual conflict of interest. Although Cousin has
set forth the basis for what may well constitute a potential
conflict of interest, we conclude that he failed to meet his
burden of demonstrating that his trial counsel was operating
under an actual conflict of interest. Therefore, we vacate the
allowance of Cousin's motion for a new trial and remand the case
to the Superior Court for further proceedings to determine
whether there was a potential conflict causing prejudice that
would warrant a new trial.
1. Prior proceedings and background. We briefly indicate
the nature of Cousin's criminal case, followed by a summary of
the facts pertinent to Cousin's conflict claim, as they were
found by the judge. We also reserve certain facts for later
discussion.
Following an investigation by the Boston police department
1
The Commonwealth also moved for reconsideration of the
motion judge's decision and to reopen the evidence. Following a
hearing on that motion, the judge issued an amended memorandum
but otherwise declined to reopen the evidence or reconsider her
decision.
3
(BPD) homicide division, Cousin and another man were charged
with murder for the shooting death of a young girl. In 2004,
Cousin and his codefendant were tried jointly for the murder,
and the jury acquitted the codefendant. The jury were
deadlocked concerning Cousin, and eventually a mistrial was
declared. In Commonwealth v. Cousin, 449 Mass. 809, 815-816,
823 (2007), cert. denied, 553 U.S. 1007 (2008), we determined
that double jeopardy did not bar Cousin's retrial because the
prosecutor's inquiry into the jurors' criminal records during
deliberation was not government misconduct intended to goad the
defendant into moving for a mistrial.
Cousin was retried for the murder in 2009, and was
represented by Attorney William White (White). Cousin was
convicted of murder in the second degree, and he was later
sentenced to life in prison. His direct appeal from his
conviction to the Appeals Court has been stayed pending the
outcome of this case.
In the meantime, Cousin, represented by new counsel, moved
for a new trial, arguing that White was burdened by an actual
conflict of interest. The primary grounds for the alleged
actual conflict were the involvement of White and his former law
firm in two Federal civil rights lawsuits. Specifically, White
and his former law partners defended members of the BPD who were
accused of misconduct in the course of other, unrelated criminal
4
investigations.
The judge, who was not the trial judge, held three days of
evidentiary hearings before granting Cousin's motion. We
present the pertinent facts she found in her written memorandum
of decision and order.
a. White and the Federal civil rights cases. White joined
the law firm of Davis, Robinson & White (DRW) as a partner in
the early 1990s. DRW was comprised of three partners: White,
Willie Davis, and Frances Robinson. White concentrated
primarily on criminal defense, and he and Robinson
intermittently represented police officers in disciplinary and
administrative hearings. An attorney for the Boston police
patrolmen's union occasionally referred police discipline cases
to Robinson; however, there was no indication that Robinson or
DRW had a formal contractual relationship with the patrolmen's
union, the BPD, or the city of Boston (city).
DRW was organized as a limited liability partnership. The
partners did not share profits or fees, and each partner earned
only the money he or she generated. The partners generally
worked independently on cases, particularly their criminal
matters. The partners did, however, share common overhead
expenses and office resources. Occasionally, the DRW partners
would meet to discuss their cases. However, there is no
indication that these informal discussions involved the
5
disclosure of confidential client information.
White left DRW in early 2007 and formed his own law firm,
William White & Associates (White & Associates). Several years
thereafter, White operated White & Associates in office space he
rented in the same building as DRW; however, his firm was
neither connected to, nor was his practice affiliated with, DRW.
At the hearing on Cousin's motion, White testified that after he
left DRW, his former partners only referred him a limited number
of civil litigation matters. In January, 2009, the same year as
Cousin's second trial, White relocated his firm to a different
office building in Boston.
Cousin's claim that White was burdened by an actual
conflict of interest focused primarily on the involvement of
White and Robinson in two Federal civil rights cases, Drumgold
vs. Callahan, U.S. Dist. Ct., No. 04-11193-NG (D. Mass. 2004)
(Drumgold), and Cowans vs. Boston, U.S. Dist. Ct. No. 05-11574-
GGS (D. Mass. 2005) (Cowans). The plaintiffs in the Drumgold and
Cowans cases alleged that BPD homicide investigators had
committed acts of police misconduct that led to their erroneous
convictions, which were later overturned. Cousin's motion
relies heavily on the purported similarities between the police
investigations underlying the Drumgold and Cowans cases and his
own.
i. Robinson's involvement in the Cowans case. The judge
6
found that Robinson represented Rosemary McLaughlin, a member of
BPD's latent fingerprint unit, who was a named defendant in the
Cowans civil rights lawsuit.
Stephen Cowans was convicted of a shooting, in part based
on fingerprints that were recovered from the crime scene and
that McLaughlin, and another member of BPD's latent fingerprint
unit whose work McLaughlin verified, matched to him.2 Several
years later, items from the crime scene underwent
deoxyribonucleic acid (DNA) testing. The testing revealed that
Cowans's DNA was not present on any of the items. A further
internal investigation also revealed that a latent fingerprint
recovered from the crime scene had been erroneously
individualized to Cowans. Based on this investigation, in 2004,
the Commonwealth joined in Cowan's motion for a new trial and
the conviction was vacated.
Following his exoneration, Cowans filed the Federal civil
rights lawsuit seeking damages against the BPD and certain
officers involved in the investigation, including McLaughlin.
Robinson filed her notice of appearance on behalf of McLaughlin
on April 5, 2006.3 Cowans's complaint alleged that McLaughlin
had discovered but concealed the fact that his fingerprints had
2
The full factual background of that case is set forth in
Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 812-813 (2001).
3
The record is unclear concerning how Robinson came to
represent McLaughlin.
7
been erroneously matched to the those recovered at the crime
scene. The claims against McLaughlin focused exclusively on her
involvement in Cowans's investigation and did not implicate her
conduct in other investigations. Robinson represented
McLaughlin until the Cowans case was resolved in September,
2007. Although the city paid the settlement in the Cowans case,
it did not pay for Robinson's defense of McLaughlin.
ii. White's involvement in the Drumgold case. White's
involvement in the Drumgold litigation began in 2006, while he
was a partner at DRW. White represented two of the BPD officers
named in the Drumgold case in succession -- a detective and then
Lieutenant Timothy Callahan.
Shawn Drumgold was convicted of murder in connection with
the 1988 shooting death of a twelve year old girl.4 After
Drumgold had been convicted and sentenced, he filed several
motions for a new trial, seeking to have his conviction
overturned on numerous grounds, including that members of the
BPD had coerced witnesses into implicating him in the shooting.
There also were claims that BPD officers failed to provide
exculpatory evidence by not disclosing favorable treatment given
to a prosecution witness. The Commonwealth's assessment of the
investigation concluded that Drumgold had not received a fair
4
The full factual background of that case is set forth in
Commonwealth v. Drumgold, 423 Mass. 230, 233-235 (1996).
8
trial, and his conviction was vacated in 2003.
In 2004, Drumgold filed the Federal civil rights lawsuit,
claiming that the BPD officers involved in his investigation
engaged in coercive tactics, pressured witnesses to give
favorable testimony, and withheld exculpatory evidence, leading
to Drumgold's erroneous conviction. Drumgold also claimed that
the BPD encouraged such conduct. The city, as one of the named
parties, retained its own counsel, but hired White to represent
the detective in his individual capacity. White was later hired
to represent Callahan after the detective had been dismissed
from the lawsuit. The city had agreed to pay for the legal
defense of the detective and Callahan pursuant to an
indemnification agreement. Although that agreement was not
produced as part of Cousin's motion for a new trial, White
testified that he had charged the city for his time representing
the detective and Callahan on an hourly basis, at an agreed
rate. White would submit monthly bills to the city for its
review and payment. Over the course of White's representation
of the detective and Callahan, the city paid White more than
$310,000 for his work. White testified that despite being
compensated by the city for representing the detective and
Callahan, he fully recognized that his only clients were the two
officers, and his loyalty toward them was undivided.
In January, 2008, the detective was dismissed from the
9
lawsuit. Because White had been involved in discovery and the
litigation in general, White testified that the city asked him
to represent Callahan. White filed his notice of appearance on
behalf of Callahan on January 29, 2008. Although White was
listed as a lead attorney on the docket, he testified that he
was not "asked to become the lead counsel for Callahan." An
attorney who had been the lead counsel representing Callahan
maintained her position, and she assigned tasks to White. When
White began representing Callahan, he had already left DRW and
was practicing at White & Associates.
The judge noted that the course of the Drumgold litigation
and the nature of the lawsuit indicated that the interests of
the city and the individual defendants were aligned. In the
same way that the city had indemnified the individual defendants
for their legal fees, the city also would be responsible for
paying any judgment or settlement arising from the claims of
misconduct against the individual officers. The judge observed
that even though the city had separate counsel, its liability
was contingent on the liability of the individual defendants.
Further, the judge noted that White had worked closely with the
city while defending both the detective and Callahan, as evinced
by the defendants' multiple joint filings and the conduct of the
10
litigation.5
Concerning the structure and mechanics of the Drumgold
trial, a judge in the United States District Court for the
District of Massachusetts ordered that the trial be divided into
three phases. The first phase would address the liability of
the individual officers, including Callahan. The second phase
would address the liability of the city and the BPD. If the
jury determined that there was a constitutional violation in
either of the first two phases, then the third phase would
address damages. The first phase of the trial took place in
March, 2008, where White participated in defending Callahan.
The jury found that Callahan was liable for one of the civil
rights claims against him, relating to his failure to disclose
that he gave "substantial amounts" of money to a witness for the
Commonwealth. The parties then agreed to conduct the damages
phase of the trial concerning the money Callahan had given to
the witness, but the jury were unable to reach a verdict. On
March 31, 2009, the judge ordered a retrial that was
specifically limited to Callahan's conduct regarding the
witness, which was scheduled for September, 2009.6
5
In October, 2007, counsel for the respective defendants,
including White, filed summary judgment motions on behalf of
their clients.
6
The scope of BPD Lieutenant Timothy Callahan's retrial was
limited to whether he intentionally or recklessly withheld
11
White did not participate in the Callahan retrial because,
at that point, he was representing Cousin, whose criminal trial
also was scheduled for September, 2009. Although White did not
participate in the Callahan retrial, he did not move to withdraw
from the representation or otherwise remove himself from the
case. White testified that he was open to returning to
represent Callahan if there was more work to be done on the
Drumgold litigation after Cousin's case concluded.
b. White's representation of Cousin. White was appointed
to represent Cousin in 2008. Davis, White's former law partner
at DRW, had represented Cousin during his first trial. After
the appeal concerning Cousin's mistrial concluded, Davis
withdrew as Cousin's counsel and recommended that White be
appointed as successor counsel.7 White was no longer working at
DRW at this time and he did not have a referral relationship
with his former firm. Cousin initially indicated that he
intended to retain private counsel for his second trial, but
after meeting White in the Nashua Street jail, Cousin agreed to
evidence from prosecutors about "(1) the fact that [the witness]
was housed at a hotel and provided with meals; (2) that there
were promises of favorable treatment in [the witness's] pending
criminal cases; and (3) that money was given to [the witness]."
Drumgold v. Callahan, 806 F. Supp. 2d 405, 408 (D. Mass. 2011),
overruled on another ground, 707 F.3d 28 (1st Cir. 2013).
7
White testified that Davis's recommendation that he take
over the Cousin's defense was spurred by a chance encounter
between White and Davis, where they talked briefly about the
case.
12
have White represent him. Based on the testimony of White and
Cousin at the hearing on the motion for a new trial regarding
this meeting, the judge concluded that White did not provide
sufficient information to Cousin about his representation of a
police officer in the Drumgold case to allow Cousin to make an
informed choice about choosing White as his attorney.
Much of Cousin's claim that White was operating under an
actual conflict of interest depended on the similarities he
alleged between his case and the Drumgold and Cowans cases.
The judge found that on June 29, 2002, the victim was shot
and killed while playing at a park in the Roxbury section of
Boston. The perpetrator fired the fatal shot from a vehicle
that was in the vicinity of the park. Cousin's fingerprints
were recovered from the exterior of that vehicle. Additional
fingerprints were also recovered from the vehicle. Several of
those fingerprints were individualized to two other individuals,
including Cordell McAfee; other fingerprints were not initially
matched to any individual. The same fingerprint analyst who
examined fingerprints in the Cowans case also examined the
fingerprints recovered from the vehicle, and McLaughlin verified
the reports that the analyst generated. Shortly before Cousin's
second trial, Rachel Lemery, another forensic examiner with the
BPD latent fingerprint unit, reviewed those fingerprint reports.
Based on her analysis of other fingerprints recovered from the
13
vehicle in 2002, Lemery was able to match those fingerprints to
Daryl Richardson, a match that the previous analyst had failed
to make before Cousin's first trial.8 It was likely that
Richardson's fingerprint could have been matched in 2002,
because Richardson was convicted of a crime in 1998, and thus
his fingerprints were likely on file.
The Richardson fingerprint match also is applicable to
Cousin's claim that the lead detective in his case, Daniel
Keeler, engaged in misconduct leading to Cousin's conviction.
Specifically, Cousin contended that Keeler had used coercive
techniques during his interrogation of Cordell McAfee, whose
fingerprints had been found inside the vehicle and whose
recorded statement implicated Cousin and his codefendant. The
issue with McAfee's recorded statement was that at least the
first hour was not recorded, and Keeler did not take notes or
generate a report summarizing the interview. Further, at
Cousin's first trial Keeler admitted that, prior to activating
the recording device, McAfee had been shown certain photographic
arrays that included photographs of Cousin and his codefendant
and had not identified either individual. Moreover, McAfee
confessed that he had been in the vehicle during the shooting,
8
Rachel Lemery conducted a review of the fingerprints that
the other analyst had analyzed and that McLaughlin had verified
after the other analyst and McLaughlin had been removed from the
BPD latent fingerprint unit.
14
along with two men named "Daryl" and "Man." Cousin claimed that
Keeler had coerced McAfee into changing his story while off tape
and then recorded only McAfee's inculpatory statements.
2. Discussion. We review the disposition of a motion for
a new trial "to determine whether there has been a significant
error of law or other abuse of discretion. . . . When, as here,
the motion judge did not preside at trial, we defer to that
judge's assessment of the credibility of witnesses at the
hearing on the new trial motion, but we regard ourselves in as
good a position as the motion judge to assess the trial record"
(citations omitted). Commonwealth v. Grace, 397 Mass. 303, 307
(1986). "While we will not disturb a judge's subsidiary
findings which are warranted by the evidence, 'ultimate findings
and conclusions of law, particularly those of constitutional
dimensions, are open for our independent review.'" Commonwealth
v. Walter, 396 Mass. 549, 553-554 (1986), quoting Commonwealth
v. Mahnke, 368 Mass. 662, 667 (1975), cert. denied, 425 U.S. 959
(1976).
a. Actual conflict of interest. The Commonwealth contends
that the judge erred in concluding that White was burdened by an
actual conflict of interest while representing Cousin.
Specifically, the Commonwealth asserts that White's involvement
in the Drumgold litigation and his former partner's
representation of McLaughlin in the Cowans case, whether
15
considered in isolation or in the aggregate, did not amount to
an actual conflict. We agree. Although Cousin identifies
certain aspects of White's representation that are concerning,
and may implicate a potential conflict of interest, Cousin has
failed to meet his burden of adducing sufficient, nonspeculative
evidence to establish that White was burdened by an actual
conflict of interest.
"Under the Sixth and Fourteenth Amendments to the
Constitution of the United States and art. 12 of the Declaration
of Rights of the Commonwealth, criminal defendants have a right
to the assistance of counsel unimpaired by loyalties to other
clients." Commonwealth v. Mosher, 455 Mass. 811, 819 (2010),
quoting Commonwealth v. Fogarty, 419 Mass. 456, 458 (1995).
This bedrock constitutional guaranty "is intended to prevent a
defendant's attorney from being hampered by contemporaneous
divided loyalties or by having acquired privileged information
which inhibits him in his representation of the defendant."
Commonwealth v. Soffen, 377 Mass. 433, 437-438 (1979). If a
defendant establishes an actual conflict of interest under art.
12, "he is entitled to a new trial without a further showing; he
need not demonstrate that the conflict adversely affected his
lawyer's performance or resulted in actual prejudice." Mosher,
16
supra. See Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).9
No further showing is required because "the effect of the
conflict on the attorney's representation of the defendant is
likely to be pervasive and unpredictable, while the difficulty
of proving it may be substantial, 'particularly as to things
that may have been left not said or not done by counsel.'"
Mosher, supra, quoting Hodge, supra at 170.
An "actual" or "genuine" conflict of interest exists where
the "independent professional judgment of trial counsel is
impaired, either by his own interests, or by the interests of
another client" (quotations omitted). Commonwealth v. Shraiar,
397 Mass. 16, 20 (1986). An actual conflict infects the
defendant's representation to the point where "prejudice is
'inherent in the situation,' such that no impartial observer
could reasonably conclude that the attorney is able to serve the
defendant with undivided loyalty." Mosher, 455 Mass. at 819-
820, quoting Commonwealth v. Epsom, 399 Mass. 254, 262 (1987).
In determining whether such a conflict exists we look to the
standards set forth in the applicable codes of professional
ethics. Mosher, supra at 820 n.19. See Mass. R. Prof. C. 1.7,
9
It is well established that art. 12 of the Massachusetts
Declaration of Rights provides broader protection than the Sixth
Amendment to the United States Constitution, which only entitles
a defendant to a new trial if an actual conflict and prejudice
is established. Compare Commonwealth v. Hodge, 386 Mass. 165,
169-170 (1982), with Cuyler v. Sullivan, 446 U.S. 335, 350
(1980).
17
as appearing in 471 Mass. 1335 (2015).10
Given that representations marred by actual conflicts of
interest exude the egregious and readily apparent divided
loyalty of counsel, the circumstances where we have found an
actual conflict have typically been limited to "[1] where an
attorney represents codefendants with inconsistent or
contradictory lines of defense; [2] where an attorney or an
associate maintains an attorney-client or direct and close
personal relationship with a material prosecution witness; or
[3] where an attorney has business [or personal] reasons for
preferring a verdict unfavorable to the defendant he or she
represents." Mosher, 455 Mass. at 820, quoting Walter, 396
Mass. at 554-555. Actual conflicts are present in these
situations because they epitomize the facial repugnance of an
attorney's divided loyalty, which places an unmistakable stain
on the attorney-client relationship. See Mosher, supra at 819.
These limited categories also stand in stark contrast to the
multitude of situations that may give rise to a potential
conflict of interest. Id. at 823. Because a potential conflict
of interest involves a more tenuous conflict, a defendant's
conviction "will not be reversed except upon a showing of
10
In this opinion, we use the 2015 version of Massachusetts
Rules of Professional Conduct, even though they were not in
effect at the time the events at issue in this case took place,
where changes to the rules are not material to our analysis.
18
material prejudice." Shraiar, 397 Mass. at 20.
The defendant carries the burden of proving both the
existence and precise character of the alleged conflict of
interest. See Walter, 396 Mass. at 554; Soffen, 377 Mass. at
437. To satisfy this burden, we require "demonstrative proof
detailing both the existence and the precise character of this
alleged conflict of interest; we will not infer a conflict based
on mere conjecture or speculation." Commonwealth v. Stote, 456
Mass. 213, 218 (2010), quoting Shraiar, 397 Mass. at 20. We
look to the attendant facts and circumstances surrounding the
claimed actual conflict. See Commonwealth v. Martinez, 425
Mass. 382, 392 (1997) (consideration of all facts concerning
defendant's claim of conflict including attorney's relationship
with prosecution witness, ethical problems, and undenied
allegations of broken client confidence). There is no
substitute for meeting this burden other than sufficient,
concrete evidence demonstrating an attorney's divided loyalty
such that prejudice is inherent in the representation. For this
reason, we have never held that a defendant can establish an
actual conflict of interest by cobbling together a collection of
potential conflicts. In determining whether an actual conflict
exists, we do not consider potential conflicts in the aggregate,
even in a representation plagued by potential conflicts; nor do
we accept that potential conflicts have a synergistic effect
19
that can result in the creation of an actual conflict.
The circumstances surrounding Cousin's claim that White had
an actual conflict involve what appear to be, at first glance, a
morass of factually similar cases, obscured connections between
attorney-client relationships, and a thread of disturbing
allegations of police misconduct. Our review of the record
reveals that these connections are in fact discretely
compartmentalized aspects of unrelated cases. Although the
circumstances in this case, as they were developed at the
hearing on the motion for a new trial, do not amount to an
actual conflict, White's representation of Cousin nonetheless
presents troubling issues that may constitute a potential
conflict of interest. However, we do not address the issue of a
potential conflict because the only issue that was considered at
the hearing on the motion for a new trial was whether there was
an actual conflict.11
b. White's involvement in the Drumgold case. The focal
point of the judge's decision that White had an actual conflict
was his involvement in the Drumgold civil rights lawsuit. The
judge construed White's involvement as embodying two problematic
11
On remand, there is an opportunity for additional
evidentiary hearings to determine whether there was a potential
conflict of interest, and whether Cousin was prejudiced thereby.
20
components: (1) White's overlapping representation of Callahan;12
and (2) White's economic and personal interest in maintaining a
professional relationship with the city, the entity that paid
White's legal fees in the Drumgold case. We review each issue
in turn.
i. The Callahan representation. The judge's conclusion
that there was a substantial risk that White's loyalty may have
been divided between Callahan and Cousin was based on her view
that, "[t]o vigorously defend Cousin, White would necessarily
have to take a position that was not in the interest of his
client Callahan in the Drumgold [F]ederal suit . . . ." This
conclusion assumed that the Drumgold and Cousin cases were
inextricably intertwined to the point where there were competing
interests, such that White would be inhibited from zealously
representing Cousin.
As a threshold matter, in considering an alleged actual
conflict stemming from an attorney's simultaneous representation
of multiple clients who are not codefendants, the presence of an
actual conflict has generally been limited to situations where
the defendant's trial counsel simultaneously represents a
prosecution witness who testifies against the defendant. See
12
The claims against the detective in the Drumgold Federal
civil rights lawsuit had been dismissed well before Cousin's
second criminal trial. Therefore, the judge did not find, and
Cousin does not argue, that White's prior representation of that
detective created an actual conflict.
21
Mosher, 455 Mass. at 820, and cases cited. In these
circumstances, the conflict is clear; the prospect of defense
counsel's cross-examination of a prosecution witness who is also
counsel's client almost inevitably "inhibit[s] defense counsel
from conducting vigorous cross-examination of the witness, or
inhibit[s] defense counsel from pursuing certain avenues of
inquiry through that witness, or tempt[s] counsel to disclose
client confidences." Commonwealth v. Patterson, 432 Mass. 767,
776 (2000), S.C., 445 Mass. 626 (2005), overruled on another
ground by Commonwealth v. Britt, 465 Mass. 87 (2013). In the
present case, Callahan was neither involved in the investigation
of Cousin nor called to testify as a prosecution witness at
Cousin's trial. In this respect, the alleged conflict
concerning White's representation of Callahan in the Drumgold
case falls well outside our established actual conflict
paradigm. See Mosher, supra at 820.13
Cousin endeavors to recast the circumstances of his case
13
In the context of a simultaneous representation:
[W]e have found an actual conflict only where (1) at
the time of trial, the defense attorney continued to
represent a prosecution witness who furnished material
testimony concerning a critical issue in the case against
the defendant; or (2) the defense attorney had previously
represented a prosecution witness in a matter related to
the defendant's criminal case who furnished material
testimony concerning a critical issue in the case against
the defendant.
Commonwealth v. Mosher, 455 Mass. 811, 820 (2010).
22
and the underlying criminal case in the Drumgold litigation to
create the appearance that these cases are so interrelated that
White's loyalty was inherently divided. Cousin's argument is
that White had an actual conflict in representing a BPD officer
in the homicide division accused of police misconduct in the
course of an investigation and, at the same time, representing a
criminal defendant who sought to impugn the investigatory
conduct of the BPD officers who investigated his case. This
proposition does not establish an actual conflict, although it
may constitute a potential conflict.
In analyzing Cousin's claim that White was saddled by a
conflict of interest due to an overlapping representation, our
analysis is aided by Mass. R. Prof. C. 1.7. See Mosher, 455
Mass. at 820 n.19. With limited exceptions, rule 1.7 prohibits
an attorney from representing a client if the representation
involves a concurrent conflict of interest. A concurrent
conflict of interest occurs where "(1) the representation of one
client will be directly adverse to another client; or (2) there
is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer." Mass. R. Prof.
C. 1.7 (a) (1), (2). Cousin does not contend, and the record
does not indicate, that White's representation of Callahan was
23
directly adverse to Cousin. Accordingly, we need only determine
whether White's overlapping representations of Callahan and
Cousin posed a significant risk that White would be materially
limited in representing Cousin. See Mass. R. Prof. C. 1.7 (a)
(2).
The concern reflected in Mass. R. Prof. C. 1.7 (a) (2) is
that an attorney's duty to another client may materially limit
the defendant's representation by inhibiting attorney's ability
to "consider, recommend or carry out an appropriate course of
action for the client." Mass. R. Prof. C. 1.7 comment 8. To
determine whether there is a significant risk that the attorney
is materially limited, "[t]he critical questions are the
likelihood that a difference in interests will eventuate and, if
it does, whether it will materially interfere with the lawyer's
independent professional judgment in considering alternatives or
foreclose courses of action that reasonably should be pursued on
behalf of the client." Id. An attorney may be materially
limited "by having acquired privileged information which
inhibits him in his representation of the defendant." Soffen,
377 Mass. at 438. See Mass. R. Prof. C. 1.7.
The Drumgold and Cousin criminal cases involve the tragic
shooting deaths of children. The BPD homicide division
investigated both cases. Each case also involved claims of
misconduct against the BPD officers who investigated the
24
killings, and both cases received significant media coverage.
Described in these broad brush strokes, Cousin advances the
judge's theory that a zealous representation of Cousin required
an attack on the BPD homicide division, which was inconsistent
with Callahan's interests, a BPD officer accused of misconduct
in an unrelated civil case. Under the lens with which we
analyze the claimed actual conflict, however, the differences
between the cases are significantly more telling than their
apparent similarities.
The record before this court establishes that Callahan was
not involved in the investigation or prosecution of Cousin.
Moreover, there is no connection between the allegations of
police misconduct in those cases. Cousin claims that Detective
Keeler conducted a coercive interrogation of McAfee, the
individual who eventually implicated Cousin in the shooting and,
as detailed above, failed to reveal exculpatory evidence that
McAfee provided. Beyond Detective Keeler's conduct, Cousin also
points to the analyst's failure to match fingerprints recovered
from the vehicle to Richardson, and McLaughlin's verification of
that faulty report. The failure to originally individualize the
fingerprints recovered from the vehicle to Richardson precluded
Cousin from exploring a viable avenue in his defense.
When White was representing Cousin at his retrial in
September, 2009, the claims against Callahan in the Drumgold
25
case had been significantly narrowed. A jury already had
determined that Callahan was not liable for all civil rights
claims other than failing to disclose exculpatory material
concerning a key witness. The Federal District Court judge
limited the scope of the Callahan retrial to whether Callahan
failed to disclose the fact that the witness was housed in a
hotel and provided with meals, that there was promises of
favorable treatment in the witness's pending criminal cases and
that money was given to him. Setting aside the fact that the
Drumgold case and Cousin's criminal case were unrelated legal
actions, Callahan was clearly not facing misconduct claims that
remotely resembled Cousin's claims regarding Keeler.
Because Cousin's case and the Drumgold case are
unmistakably separate legal actions, involving different BPD
officers investigating the killings, and distinguishable claims
of police misconduct, a vigorous attack on the police conduct in
Cousin's defense would not constitute an attack on all members
of BPD's homicide unit.14 Moreover, Cousin has failed to produce
14
Were we to accept Cousin's premise, the natural
implication would be a prohibition on attorneys representing a
police officer in a civil case accused of misconduct and, at the
same time, representing a criminal defendant who had been
investigated by a different member of the same police
department, even if the cases were unrelated and there was no
connection between the officer-defendant in the civil case and
the other members of that police department who investigated the
defendant's case. This would be an overbroad and imprecise
application of our conflict of interest law that would
26
any evidence from the record suggesting that vigorously
defending Cousin would be inconsistent with representing
Callahan. We are further persuaded that, based on this record,
White's representation of Callahan did not create an actual
conflict of interest because there is no indication that White
acquired confidential information from Callahan that materially
limited his representation of Cousin. See Soffen, 377 Mass. at
437-438. See also Mass. R. Prof. C. 1.7.
ii. White's economic and personal interests. The judge
also concluded that White had an actual conflict of interest
stemming from his economic and personal interest in the Drumgold
litigation. In the judge's view, "White had an economic or
personal interest, at the time he represented Cousin, in
remaining on good terms with the BPD, thus creating a
substantial risk that the manner in which he represented Cousin
could materially and adversely be affected." Beyond White's
financial compensation for his representation of the individual
officers in the Drumgold case, the judge emphasized that, "[a]s
the entity that paid the bills, the city was essentially White's
largest paying client in the year leading up to Cousin's second
trial." On appeal, Cousin endorses this reasoning and further
asserts that because the city was White's client, White was
undoubtedly impact the law practice of many attorneys and limit
the ability of police officers to hire the attorney of their
choice.
27
restrained from vigorously challenging the investigation in his
case because of his professional obligations to the city.
Much like an actual conflict arising from the competing
interests of clients, an attorney's own interests can impair his
or her independent professional judgment to the point of causing
an actual conflict. See Commonwealth v. Perkins, 450 Mass. 834,
852 (2008); Mass. R. Prof. C. 1.7 (a) (2) & comment 1. An
attorney's personal interest can amount to an actual conflict of
interest in a variety of situations. See, e.g., Hodge, 386
Mass. at 168 (defense counsel's financial incentive "in not
antagonizing his firm's client"); Commonwealth v. Crocken, 432
Mass. 266, 273 (2000) ("A lawyer's personal interests surely
include his interest in maintaining amicable relations with his
relatives, his spouse, and anyone with whom he is comparably
intimate"). But see Commonwealth v. Milley, 67 Mass. App. Ct.
685, 689 (2006) (claim that attorney was complicit in hiring
scheme to ensure he continued to receive appointments from
clerk-magistrate was too speculative and did not show actual
conflict with duty to represent defendant).
In the context of an attorney's economic interest in a
representation, we have held that an actual conflict exists
"where an attorney has business reasons for preferring a verdict
unfavorable to the defendant he or she represents" (citation
omitted). Mosher, 455 Mass. at 820. However, an attorney's
28
financial interest in being compensated for providing legal
representation, by itself, is generally too attenuated to
constitute an actual conflict. We have held that an actual
conflict can materialize out of an attorney's financial interest
in a representation combined with that attorney's duty of
loyalty to another client or a third person. For example, in
Hodge, 386 Mass. at 168, trial counsel was burdened by an actual
conflict where he was faced with cross-examining a prosecution
witness who was, at that time, represented by that attorney's
law firm. We held that trial counsel was burdened by an actual
conflict caused by his "financial interest in not antagonizing
his firm's client by a vigorous cross-examination designed to
discredit him, and his duty to consider only [the defendant's]
best interest in deciding whether and how to cross-examine" the
firm's client. Id. The actual conflict in Hodge did not depend
exclusively on trial counsel's financial interest in the
representation, but the significant risk that his loyalty would
be inherently divided in cross-examining his firm's client. See
id.
Cousin has failed to adduce any facts to support his claim
that White had an actual conflict because the city paid him to
represent Callahan and the detective in the Drumgold case. The
fact that White was paid more than $310,000 for his
representation, without more, does not provide a basis to
29
conclude that there was an actual conflict of interest.
Furthermore, our conclusion is not altered by White's testimony
indicating that he was open to returning to defend Callahan
after Cousin's trial concluded, where this prospect, by itself,
is also too speculative to conclude that White's personal
interest caused him to have a divided loyalty, amounting to an
actual conflict. Although White's prospect of future work for
the city would certainly be relevant in analyzing a potential
conflict claim, without more it is too tangential to constitute
an actual conflict.
Cousin's claim that White had an actual conflict because
the city was essentially his client is equally unsupported by
the record. Significantly, Cousin relies on speculation and
conjecture to support his allegation that White was constrained
from vigorously defending him through an attack on the alleged
police misconduct in Cousin's defense because it could have
exposed the BPD, and ultimately the city, to greater liability.15
15
Cousin contends that White admitted during the hearing on
the motion for a new trial that he had a conflict of interest.
This alleged acknowledgement occurred during an exchange between
the judge and White, following White's testimony that he
developed a practice of telling all of his criminal clients that
he represented a police officer in the Drumgold case. The judge
inquired, "Because it could be perceived as a conflict of
interest?" White replied that "[i]t would certainly be
perceived as a conflict of interest." The context of this
exchange, in light of White's multiple repudiations about having
an actual conflict, belie Cousin's contention that White
conceded the existence of an actual conflict.
30
In search of support for this proposition, Cousin relies on
United States v. Schwarz, 283 F.3d 76, 90-92 (2d Cir. 2002).
Schwarz involved a police officer who had been charged with
assault. Id. at 80. In that case, the defendant's law firm had
entered into a two-year, $10 million retainer agreement with the
Policeman's Benevolent Association (PBA) to represent "all
police officers in administrative, disciplinary, and criminal
matters as well as to provide them with civil legal
representation." Id. at 81. The United States Court of Appeals
for the Second Circuit determined that at the point the
individual who had been assaulted filed a civil lawsuit against
the PBA, an actual conflict arose because the PBA's interests
diverged from those of the defendant. Id. at 91. There was an
actual conflict at that point because the PBA's interest in
limiting its liability diverged from the defendant's interest in
advancing a defense in which he would implicate another police
officer in the assault. Id. Defense counsel's zealous
representation of the defendant in the criminal case could have
hampered the PBA's defense in the civil suit and, as a result,
the defendant's counsel faced an actual conflict between his
representation of the defendant, on the one hand, and his
professional obligation to the PBA as well as his own personal
and financial interest on the other. Id. at 91-92. Cf.
Commonwealth v. Wooldridge, 19 Mass. App. Ct. 162, 167-168
31
(1985) (firm's contract with police association imposed
continuing professional duties on firm's lawyers to former
clients who were members of police association).
The circumstances in Schwarz, particularly the existence of
an agreement that the attorneys in Schwarz represented the PBA
directly, highlight the infirmities in Cousin's claim that White
had an actual conflict due to his relationship with the city.
There is no indication that White represented the city, a police
union, or anyone other than Murphy and Callahan in the Drumgold
case. Indeed, White testified at the hearing on the motion for
a new trial that he only represented Murphy and Callahan in the
Drumgold litigation. Moreover, White testified that he
understood his loyalty was exclusively to the detective and
Callahan.16 Although White's agreement with the city to
represent the individual officers was not produced at the
hearing on the motion for a new trial, Cousin has failed to put
forth evidence to controvert White's testimony that he only
represented the detective and Callahan. Contrast Schwarz, 283
F.3d at 96 (attorney's firm had $10 million retainer agreement
with PBA to represent all police officers in variety of legal
proceedings).
16
Although White's alleged personal interest in remaining
on good terms with the city is certainly a relevant
consideration in a potential conflict analysis, it is too
ephemeral to amount to an actual conflict.
32
Similarly, there is no suggestion in the record that White
or the city's conduct in the Drumgold case expanded the scope of
White's representation beyond the detective and Callahan.17 The
record is silent concerning what, if any, direction or control
the city exerted over White in the course of his involvement in
the Drumgold case. Significantly, no information was developed
concerning whether White had acquired confidential information
about the city that may have been material to Cousin's defense,
particularly his allegations of police misconduct. Had White
acquired confidential information about the city or the BPD that
would have materially limited his representation of Cousin and
created a concurrent conflict, that likely would have
constituted an actual conflict. See Soffen, 377 Mass. at 437-
438. See also Mass. R. Prof. C. 1.7. Although this may be a
compelling avenue of exploration concerning a claim that there
was a potential conflict, based on the record before this court,
it does not amount to an actual conflict. This conclusion
applies equally to the premise that White may have been less
17
Cousin has failed to establish that there was an implied
attorney-client relationship between White and the city. See
Bays v. Theran, 418 Mass. 685, 690 (1994) ("attorney-client
relationship may be implied when [1] a person seeks advice or
assistance from an attorney, [2] the advice or assistance sought
pertains to matters within the attorney's professional
competence, and [3] the attorney expressly or impliedly agrees
to give or actually gives the desired advice or assistance"
[quotations and citation omitted]). Although the record before
this court is undeveloped in this respect, it could be an area
of relevant consideration in a potential conflict analysis.
33
than vigorous in defending Cousin because White wanted to
maintain an amicable relationship with the city and not expose
the city to greater liability in the Drumgold case. It is clear
from the dearth of information in the record that Cousin has
failed to carry his burden of proving that White had an actual
conflict as a result of his involvement in the Drumgold
litigation or his relationship to the city.
c. Robinson's representation of McLaughlin. In
determining that White was burdened by an actual conflict, the
judge considered, at least in part, Robinson's representation of
McLaughlin, one of the fingerprint analysts in Cousin's case.
Robinson defended McLaughlin, in the Cowans case, while White
and Robinson were law partners at DRW, against a claim that
McLaughlin had concealed an erroneous fingerprint match that had
implicated Cowans in a shooting. Cousin contends that White
continued to owe a duty of loyalty to his former partner's past
client that prohibited White from representing Cousin, thus
amounting to an actual conflict. We discern no such conflict.
At the outset, it is uncontroverted that neither White nor
Robinson was representing McLaughlin at the time of Cousin's
trial. Robinson's representation of McLaughlin ended in
September, 2007, when the Cowans case settled. White left DRW
in 2007 and began his own firm, White & Associates. He filed
his notice of appearance on behalf of Cousin approximately one
34
year later, on October 22, 2008. Significantly, McLaughlin was
never identified as a witness for the Commonwealth and she did
not testify at Cousin's first or second trials, which began in
September, 2009. White never confronted the prospect of cross-
examining his former partner's past client in defending Cousin.
Even were we to assume that McLaughlin may have testified
as a prosecution witness against Cousin, despite her no longer
being a member of the latent fingerprint unit, we have generally
held that terminating that conflicting representation prior to
the defendant's trial "obviat[es] the risk of simultaneous
representation." Martinez, 425 Mass. at 389. Because
Robinson's representation of McLaughlin ended approximately two
years before Cousin's trial, White was not burdened by an actual
conflict. See Mosher, 455 Mass. at 821-823 (no actual conflict
resulted from representation terminated one month prior to
trial); Patterson, 432 Mass. at 775-776 (no actual conflict
resulted from previously terminated representation); Fogarty,
419 Mass. at 459-460 (no conflict where defense counsel's
associate ended representation of prosecution witness prior to
defendant's retaining defense counsel); Commonwealth v. Smith,
362 Mass. 782, 783-784 (1973) (no conflict where defense
counsel's representation of prosecution witness ended before
defendant's trial commenced).
The fact that neither White nor Robinson was representing
35
McLaughlin at the time of Cousin's trial does not end our
inquiry concerning whether White had a surviving duty of loyalty
to McLaughlin that would have impeded him from vigorously
representing Cousin. To resolve this issue, we are guided by
Mass. R. Prof. C. 1.9, as appearing in 471 Mass. 1359 (2015),
which traces the contours of an attorney's duty of loyalty to
former clients. Rule 1.9 prohibits an attorney from
representing clients whose interests are adverse to a former
client, particularly where that former client's confidential
information may be at issue in the subsequent representation.
See Mass. R. Prof. C. 1.9 (a).
An attorney who leaves a law firm to take a position at
another law firm may have a continuing duty of loyalty to his or
her former firm's past clients. Mass. R. Prof. C. 1.9 (b).
That attorney is prohibited from representing a person in the
same or a substantially related matter in which their former
firm had represented a client where (1) that person's interests
are materially adverse to the former client, and (2) the
attorney acquired protected confidential information from the
former client that is material to that person's case. Mass. R.
Prof. C. 1.9 (b) (1), (2). This prohibition "operates to
disqualify the lawyer only when the lawyer involved has actual
knowledge of information protected by Rules 1.6 and 1.9(c)."
Mass. R. Prof. C. 1.9 comment 5. If the attorney did not
36
acquire knowledge about the former firm's client, and that
attorney joins another firm, "neither the lawyer individually
nor the second firm is disqualified from representing another
client in the same or a related matter even though the interests
of the two clients conflict." Id.
Although McLaughlin was a past client of White's prior law
firm, White testified at the hearing on the motion for a new
trial that he was uninvolved in Robinson's representation of
McLaughlin, and he did not acquire any confidential information
about McLaughlin. There is nothing in the record that
contradicts White's testimony that the partners at DRW generally
handled their cases independently. To the extent that White and
his law partners at DRW discussed cases generally, the record is
insufficiently developed to support an inference that general
discussion about cases indicates that White acquired
confidential information about McLaughlin from Robinson.18 There
was no indication that White was restrained from challenging
McLaughlin's work as a fingerprint analyst in Cousin's case.19
18
This type of informal discussion of cases, depending on
their content and whether confidential information was
discussed, would be a relevant inquiry in a potential conflict
analysis.
19
The difference between the allegations of misconduct
against McLaughlin in this case compared to the Cowans case is
also significant. In the Cowans case, McLaughlin was accused of
concealing the discovery that a fingerprint recovered from the
crime scene was erroneously matched to Cowans, thus implicating
37
Furthermore, a telephone conversation that Robinson
coordinated between White and McLaughlin does not change our
view that there is insufficient evidence to establish an actual
conflict on these grounds. White testified that in the course
of preparing for Cousin's trial, and in response to the report
that the originally analyzed and unmatched fingerprints actually
had a match, White attempted to contact McLaughlin. Robinson
facilitated the telephone call between White and McLaughlin
after White mentioned, in the course of having lunch with
Robinson, that he was preparing for Cousin's criminal trial and
he had been unable to contact McLaughlin. White spoke with
McLaughlin in private, and Robinson was not present for the
conversation. Significantly, White testified that he did not
acquire any confidential information about McLaughlin during
that telephone call, and there is nothing in the record to
indicate that White gleaned any confidential information during
that conversation, which he described as brief and "not . . .
terribly productive." Accordingly, Cousin fails to set forth
any information suggesting that White acquired confidential
an apparently innocent individual in a crime. Here, the
evidence indicates that McLaughlin verified another analyst's
fingerprint analysis, in which that analyst evidently failed to
individualize a latent print to an individual who was presumably
in the fingerprint database. With no view on whether this
constituted negligence, misconduct, or neither, it is
nonetheless clear here that the allegations against McLaughlin
in the two cases have no connection that would inhibit White
from attacking McLaughlin's work in defending Cousin.
38
information, either before or during this telephone call, that
triggers the prohibitions prescribed in rule 1.9 (b). The mere
fact that Robinson put White in contact with her former client
in no way subverts that proposition.20
3. Conclusion. Based on the foregoing, we discern that
there was insufficient evidence to establish that White was
burdened by an actual conflict. We vacate the judge's decision
granting Cousin's motion for a new trial and remand the case to
the Superior Court for further evidentiary hearings on whether
Cousin was prejudiced by potential conflicts of interest.
So ordered.
20
The record is equally devoid of evidence that Robinson's
representation of McLaughlin arose from an underlying,
contractual referral relationship between the city or the Boston
police patrolmen's union and Robinson and White. This is not
altered by White's brief testimony indicating that Robinson knew
the attorney for the patrolmen's union.