Wood v. Georgia , 101 S. Ct. 1097 ( 1981 )

Justice Powell

delivered the opinion of the Court.

Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines. Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the record in this case suggests that petitioners may be in their present predicament because of the divided loyalties of their counsel, we have concluded that it is inappropriate to reach the merits of this difficult equal protection issue. Instead, we remand this case for further findings concerning a possible due process violation.

I

Petitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga. Code § 26-2101 (1978). About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore. There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities.

Tante and Allen were tried together and found guilty on both counts by a jury. A separate jury convicted Wood on both counts. All three were then sentenced by the same judge. Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation. Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately.

After these convictions were affirmed on appeal,¹ the trial court issued orders specifying the terms of probation. These required all three petitioners to make installment payments on their fines of $500 per month during the course of their periods of probation. After three months had elapsed, none of the petitioners had made any of the required payments, and the county probation officers therefore moved for revocation of their probations. At a hearing on January 26, 1979, petitioners admitted that they had failed to make the installment payments, but offered convincing evidence of their inability to make these payments out of their own earnings.² They also stated that they had expected their employer³ to pay the fines for them. Faced with petitioners’ complete failure to satisfy a condition of their probations, the court decided to revoke these probations unless petitioners made up their arrearages within five days. Unable to do so, petitioners moved for a modification of the conditions of their proba-tions. This motion was denied, and the court ordered petitioners to serve the remaining portions of their jail sentences.

II

After this revocation decision was affirmed by the Georgia Court of Appeals,⁴ we granted a writ of certiorari to decide a question presented by the facts just summarized: whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines. 446 U. S. 951. On closer inspection, however, the record reveals other facts that make this an inappropriate case in which to decide the constitutional question. Where, as here, a possible due process violation is apparent on the particular facts of a case, we are empowered to consider the due process issue.⁵ Moreover, for prudential reasons, it is preferable for us to remand for consideration of this issue, rather than decide a novel constitutional question that may be avoided. Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) (broad constitutional questions should be avoided where a case may be decided on narrower, statutory grounds on remand).

Petitioners have been represented since the time of their arrests by a single lawyer. The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid — or was expected to pay — the lawyer for his services.⁶ They understood that this legal assistance was provided to them by their employer.⁷ In fact, the transcript of this hearing reveals that legal representation was only one aspect of the assistance that was promised to petitioners if they should face legal trouble as a result of their employment. They were told that their employer also would pay any fines and post any necessary bonds,⁸ and these promises were kept for the most part. In this case itself, as petitioners’ lawyer stated at oral argument, bonds were posted with funds he provided.⁹ In addition, when each of the petitioners was arrested a second time, he paid the resulting fines.¹⁰ All aspects of this arrangement were revealed to the court at the revocation hearing.

For some reason, however, the employer declined to provide money to pay the fines in the cases presently under review.¹¹ Since it was this decision by the employer that placed petitioners in their present predicament, and since their counsel has acted as the agent of the employer and has been paid by the employer, the risk of conflict of interest in this situation is evident. The fact that the employer chose to refuse payment of these fines, even as it¹² 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 here. If offenders cannot be jailed for failure to pay fines that are beyond their own means, then this operator of “adult” establishments may escape the burden of paying the fines imposed on its employees when they are arrested for conducting its business. To obtain such a ruling, however, it was necessary for petitioners to receive fines that were beyond their own means and then risk jail by failing to pay.

Although we cannot be sure that the employer and petitioners’ attorney were seeking to create a test case, there is a clear possibility of conflict of interest on these facts. Indications of this apparent conflict of interest may be found at various stages of the proceedings below. It was conceded at oral argument here that petitioners raised no protest about the size of the fines imposed at the time of sentencing. During the three months leading up to the probation revocation hearing they failed to pay even small amounts toward their fines to indicate their good faith. In fact, throughout this period, petitioners apparently remained under the impression that — as promised — the fines would be paid by the employer. Even at the revocation hearing itself, petitioners attempted to prove their inability to make the required payments but failed to make a motion for a modification of those requirements. That motion was not made until one day before petitioners were due to be incarcerated.¹³ A review of these facts demonstrates 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 to impose such large fines, as well as the decision to revoke petitioners’ probations rather than to modify the conditions.¹⁴

Ill

Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise.¹⁵ One risk is that the lawyer will.prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer’s interest¹⁶ Another kind of risk is present where, as here, the party paying the fees may have had a long-range interest in establishing a legal precedent and could do so only if the interests of the defendants themselves were sacrificed.¹⁷ As suggested above, the factual setting of this case requires the Court to take note of the potential unfairness resulting from this particular third-party fee arrangement. Petitioners were mere employees, performing the most routine duties, yet they received heavy fines on the apparent assumption that their employer would pay them. They now face prison terms solely because of the employer’s failure to pay the fines, having been represented throughout by a lawyer hired by that employer. The potential for injustice in this situation is sufficiently serious to require us to consider whether petitioners have been deprived of federal rights under the Due Process Clause of the Fourteenth Amendment.

We have held that due process protections apply to parole and probation revocations. Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). In Scarpelli we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings. Recognizing that the “need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases,” 411 U. S., at 789, we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel.

In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga. Code § 27-2713 (1978). But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present.” 411 U. S., at 790. This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category.

Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E. g., Cuyler v. Sullivan, 446 U. S. 335 (1980); Holloway v. Arkansas, 435 U. S. 475, 481 (1978). Here, petitioners were represented by their employer’s lawyer, who may not have pursued their interests single-mindedly. It was his duty originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient. On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below.

It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.¹⁸ The facts outlined above were all made known at that time. The court must have known that it had imposed disproportionately large fines — penalties that almost certainly were increased because of an assumption that the employer would pay the fines.¹⁹ The court did know that petitioners’ counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial reductions in, or deferrals of, the fines. These facts demonstrate convincingly the duty of the court to recognize the possibility of a disqualifying conflict of interest. Any doubt as to whether the court should have been aware of the problem is dispelled by the fact that the State raised the conflict problem explicitly and requested that the court look into it.²⁰

For these reasons, we base our decision in this case on due process grounds. The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.²¹

Vacated and remanded.

1 Allen v. State, 144 Ga. App. 233, 240 S. E. 2d 754 (1977), cert. denied, 439 U. S. 899 (1978); Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 (1977), cert. denied, 439 U. S. 899 (1978).

2 According to their testimony, all of the petitioners had by that time left their jobs in the “adult” establishments. Allen testified that her only income was $250 per month from unemployment insurance. See Transcript of Revocation Hearing, State Court of Fulton County, Criminal Division (Jan. 26, 1979) (hereinafter Tr.), at 7. Tante testified that his income as a correction officer was $540 per month. Id., at 35. He had been unemployed for eight months before obtaining that job. Id., at 39-40. Wood testified that he was trying to support a family and earning $120 per week working at a truck and trailer rental yard. Id., at 53-54.

3 The record suggests that the Plaza Theatre, which employed Tante and Allen, and the Plaza Adult Bookstore, which employed Wood, were under common ownership.

4 150 Ga. App. 582, 258 S. E. 2d 171 (1979).

5 Justice White’s dissenting opinion argues that this Court lacks jurisdiction to remand this ease on due process grounds because, in his view, the conflict-of-interest issue has not been properly presented. To be sure, it was not raised on appeal below or included as a question in the petition for certiorari. These facts merely emphasize, however, why it is appropriate for us to consider the issue. The party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel. And certainly the State’s Solicitor, whose duty it was to support the judgment below, could not be expected to do more than call the problem to the attention of the courts, as he did. Petitioners were low-level employees, and now appear to be indigent. See n. 2, supra. We cannot assume that they, on their own initiative, were capable of protecting their interests.

As indicated, post, at 277r278, n. 1; see also n. 20, infra, it is abundantly clear that the possibility of a conflict of interest was pointed out to the trial court at the revocation hearing. The State’s Solicitor raised the issue repeatedly. The State’s Brief in Opposition 4, n. 2, again identified the apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners cannot be heard to complain of any lack of notice.

In this context, it is appropriate to treat the due process issue as one “raised” below, and proceed to consider it here. See Boynton v. Virginia, 364 U. S. 454, 457 (1960) (deciding a case on a statutory issue raised below but not raised in this Court). Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U. S. C. §2106 (authorizing this Court to “require such further proceedings to be had as may be just under the circumstances”); R. Stem & E. Gressman, Supreme Court Practice § 6.27, p. 460 (5th ed. 1978) (in review of state cases, “the Court doubtless limits its power to notice plain error to those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings”). See also Vachon v. New Hampshire, 414 U. S. 478 (1974).

6 See Tr. 26 (Allen); id., at 43 (Tante); id., at 63 (Wood).

7 E. g., id., at 42-43 (Tante).

8 As petitioners’ lawyer himself put it: “I want to bring this before the Solicitor and the Court that I believe Mrs. Allen told me and she told the Probation Officer that she — they were told, given information that their fine would be paid. The bond would be paid and a lawyer would be representing them.” Id., at 14. See also id., at 62-63 (Wood). During oral argument in this Court, the lawyer conceded that he had been paid by the employer during petitioners’ trials. Tr. of Oral Arg. 15-16. He indicated that these payments stopped when petitioners went on probation and left their jobs with this employer, but he has never dispelled the implication that he has an ongoing employment arrangement with the employer.

9 Id., at 8. The fact that the employer provided appeal bonds for petitioners after the probation revocation hearing suggests that his involvement with the case did not end when petitioners quit work in these “adult” establishments.

10 Tr. 12, 41, 56-57. These payments took place while the instant cases were still on direct appeal.

11 Counsel suggested at oral argument that the reason for this decision not to pay the fines was a change of ownership. It might also be explained by the fact that petitioners were no longer working for the “adult” establishments. Neither of these facts suggests, however, that the employer had lost interest in the case, since appeal bonds were provided for petitioners. Indeed, the providing of these appeal bonds suggests that the decision not to pay the fines themselves was a conscious one. And the fact that petitioners had left their jobs may have allowed the employer to pursue his goals without any concern about losing petitioners’ services in the event of a probation revocation.

12 The record does not make clear whether the employer was an individual or a corporation, or indeed even identify the employer.

13 Petitioners’ counsel states that he did attempt to alert the court to the problem of petitioners’ inability to pay by letter, soon after their pro-bations began. But no motion was made.

14 There is also a danger that petitioners’ lawyer was influenced in his strategic decisions by other improper considerations. Rather than relying solely on the equal protection claims, he could have sought leniency at the probation hearing by arguing that the stiff sentences imposed on petitioners should be modified in light of the employer’s unanticipated refusal to pay the fines. But this would have required him to dwell on the apparent bad faith of his own employer, and to emphasize the possibly improper arrangement by which he came to represent petitioners. Thus it is not correct, as Justice White argues, post, at 281, that the “conflict of interests . . . only emerges by assuming that the employer ... set out to construct a constitutional test case.” Even if the employer’s motives were unrelated to its interest in establishing a precedent, its refusal to pay the fines put the attorney in a position of conflicting obligations.

15 As one court has stated:

“A conflict of interest inheres in every such situation. ... It is inherently wrong to represent both the employer and the employee if the employee’s interest may, and the public interest will, be advanced by the employee’s disclosure of his employer’s criminal conduct. For the same reasons, it is also inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee’s testimony.” In re Abrams, 56 N. J. 271, 276, 266 A. 2d 275, 278 (1970).

See also In re Investigation Before April 1975 Grand Jury, 174 U. S. App. D. C. 268, 274, n. 11, 531 F. 2d 600, 606, n. 11 (1976); Pirillo v. Takiff, 462 Pa. 511, 341 A. 2d 896 (1975), appeal dism’d and cert. denied, 423 U. S. 1083 (1976); ABA Model Code of Professional Responsibility DR 5-107 (A), (B) (1980); ABA Standards for Criminal Justice 4-3.5 (c) (2d ed. 1980); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 960-961 (1978).

16 There are indications in the transcript of the revocation hearing that the State had been unable to learn the name of petitioners’ employer, and that petitioners were concealing its identity. At one point, the Solicitor stated: “Mrs. Allen, is it not true each time you were arrested that we sought to get your cooperation to find out who is operating these places?” Tr. 28. Later, during the Solicitor’s cross-examination of Tante, the following colloquy took place:

“Q Mr. Tante, who did you call when you said you called and told them to get someone else out there?

“A I called the secretary of the union first.

“Q And what about the company? Did you call them?

“A And the company, I gave notice to — whatever his name was. Mister — what was his name?

“MR. ZELL [petitioners’ attorney] I’m sorry, I wasn’t listening.

“A The manager of the theatre, Mister — I think it was you I told first. I said, T want to get out of the theatre as soon as possible. In fact, I’d like to leave now.’ And I said, 'As far as I’m concerned, I’m out, and that’s it.’

“Q You called Mr. Zell to tell him to get someone else out there to operate the theatre?

“A No, sir. I called my business secretary at the union, told them I wanted out; to find me another job. If they wanted to put a man in there send them out. And they informed me to get on out of there that they would not send another union man out there.

“Q But you also talked to someone with the company, you said?

“A At the time, I did not, sir. I told Mister — Mrs. Allen, I said—

“MR. ZELL Hold it. Hold it, Mr. Tante. It’s now ten-thirty, Your Honor. We’re getting into areas that — the only question here is violation or failure to pay as directed.” Id., at 45-46.

17 The ABA Model Code of Professional Responsibility EC 5-23 (1980) states:

“A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be jar more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer’s individual client. . . . Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom.” (Emphasis added.)

18 Justice White’s dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U. S. 335 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it “knows or reasonably should know that a particular conflict exists.” Id., at 347.

19 Both counsel agreed that, in light of the size of fines imposed on petitioners — relatively minor and impecunious participants in the criminal enterprises — the judge must have assumed that the employer would pay. Tr. of Oral Arg. 13, 40.

20 At one point during the discussion of Allen’s case, the Solicitor, Mr. Rhodes, put it this way:

“MR. RHODES: What I’m trying to show is, Your Honor, that she in fact — that Mr. Zell [the attorney] was hired by someone else. She did not make the choice. That they sent Mr. Zell down here to represent her. And she may have acquiesced in it, but that she did not employ Mr. Zell to represent her.

“THE COURT: All right. How is that relevant to this issue?

“MR. RHODES: To what I say, there’s a conflict of interest in this case.

“Mr. Zell is representing her employer, and there’s two different interests there.

“They had promised this woman that they would pay her fine and they would take care of all these expenses. There’s a conflict.

“Mr. Zell’s, as I said, his first duty is to the persons that pay him. And that’s what he’s doing. He’s trying to take care of them.” Tr. 26-27 (emphasis added).

See also id., at 14-15.

As noted in n. 5, supra, the State raised this problem here as an argument against a grant of certiorari. The State’s Brief in Opposition 4, n. 2, stated:

“During the probation revocation hearing there were several discussions between the Court, the Petitioner’s [sic] lawyer and the Solicitor concerning the fact that the Petitioner’s [sic] lawyer also represents the Plaza Theater, the theater in which Petitioners Allen and Tante were employed. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents . . . .”

21 Because we are presented here only with the question of petitioners’ probation revocations, we do not order more sweeping relief, such as vacating petitioners’ sentences or reversing their convictions. Such actions do, however, remain within the discretion of the trial court upon appropriate motion.

There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing.