American Journal of Criminal Law
What are the responsibilities of a prosecutor when she learns in the course of preparing for trial that defense counsel has a potential conflict of interest? Must the prosecutor alert defense counsel and the trial judge to the problem? May she move to disqualify defense counsel? This Article explores the responsibilities that courts have begun to, and ought to, impose on prosecutors. In large part, the prosecutor's responsibilities are subordinate to those of defense counsel and the trial judge, who have the primary responsibility to ensure that the defendant's right to independent counsel is not unfairly abridged. Therefore, as background to a discussion of the prosecutor's role, Part I discusses the roles of defense counsel and of the trial judge in cases in which defense counsel has a potential conflict of interest. Part I then explores the scope and nature of the prosecutor's ethical responsibility in cases in which defense counsel has a potential conflict of interest. Finally, Part I examines two unsettled, and largely unexplored, questions: first, does the prosecution have a responsibility to cooperate in eliminating conflicts of interest which would otherwise necessitate defense counsel's disqualification; and second, under what circum- stances is it proper for a prosecutor to seek defense counsel's disqualification notwithstanding the defendant's willingness to waive conflict- of-interest claims?
16 Am. J. Crim. L. 323 (1988-1989)