Anderson v. Comm'r of Correction.

• Decision Date: 29 March 2011
• Docket Number: No. 32101.,32101.
• Court: Connecticut Court of Appeals
• Parties: Francis ANDERSONv.COMMISSIONER OF CORRECTION.

127 Conn.App. 538

15 A.3d 658

Francis ANDERSON

v.COMMISSIONER OF CORRECTION.

No. 32101.

Appellate Court of Connecticut.

Argued Jan. 6, 2011.Decided March 29, 2011.

Michael E. O'Hare, supervisory assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara Grosso, special deputy assistant state's attorney, for the appellant (respondent).Robert J. McKay, special public defender, for the appellee (petitioner).DiPENTIMA, C.J., and BISHOP, ROBINSON, Js.BISHOP, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting, in part, the revised amended petition for a writ of habeas corpus filed by the petitioner, Francis Anderson. The respondent claims that the court improperly determined that the petitioner was deprived of the effective assistance of trial counsel due to a conflict of interest. We agree and, accordingly, reverse the judgment of the habeas court.

The following procedural history is relevant to our resolution of the respondent's claim. In the underlying criminal matters, the petitioner was charged with three counts of burglary in the third degree in violation of General Statutes § 53a–103, one count of larceny in the second degree in violation of General Statutes § 53a–123, two counts of larceny in the third degree in violation of General Statutes § 53a–124, two counts of credit card theft in violation of General Statutes § 53a–128c (a), one count of illegal use of a credit card in violation of General Statutes § 53a–128d, one count of receipt of money, goods or services from illegal use of a credit card in violation of General Statutes § 53a–128g, one count of assault in the third degree in violation of General Statutes § 53a–61 and violation of probation under General Statutes § 53a–32. On January 10, 2008, the petitioner entered guilty pleas, pursuant to the Alford doctrine,¹ to three counts of burglary in the third degree and one count of larceny in the second degree and admitted a violation of probation. The state entered a nolle prosequi as to the remaining charges. On March 6, 2008, the trial court sentenced the petitioner to a total effective sentence of five years imprisonment and three years of special parole. The petitioner did not file a direct appeal.

On October 8, 2009, the petitioner filed a revised amended petition for a writ of habeas corpus alleging that the trial court was not impartial. In response to this claim, the respondent raised the defense of procedural default. The petition also alleged that trial counsel, attorney Linda Babcock of the office of the public defender for the judicial district of Hartford (Hartford office), rendered ineffective assistance, depriving the petitioner of his right to the effective assistance of counsel under both the state and federal constitutions.

In the November 9, 2009 habeas hearing, Babcock testified that the petitioner had been implicated in some of the charges by a codefendant, Jason Fennely, who was represented by another public defender from the Hartford office, attorney Robert Famiglietti. She also testified that, while the criminal case was pending, she had requested Famiglietti's permission to speak with Fennely to learn whether he planned to testify against the petitioner but that Famiglietti had denied the request. Additionally, Babcock testified that Famiglietti would not reveal Fennely's intentions. Finally, in this regard, Babcock testified that she and Famiglietti shared no information pertaining to the case, and the fact that they worked in the same office had no effect on her representation of the petitioner.

By oral decision at the close of the hearing, the habeas court found that the petitioner's claim as to the trial court's impartiality was procedurally defaulted. The court also found that Babcock did not act in a constitutionally defective manner in her representation of the petitioner. Nevertheless, the court granted the petition on the basis of its finding that the petitioner's trial counsel had an actual conflict of interest. The court reasoned that Famiglietti and Babcock, as public defenders from the same office, were members of the same law firm and were prohibited ethically from representing adverse interests. Because they represented codefendants with adverse interests, the court found that their simultaneous representation of the petitioner and Fennely was a conflict of interest prohibited by rule 1.7 of the Rules of Professional Conduct.² On this basis, and without finding that Babcock's claimed conflict adversely affected her representation of the petitioner, the court granted the petition. The court simultaneously found against the petitioner on every other claim that he had advanced in support of his petition.³ On November 25, 2009, the court denied the respondent's motion for reconsideration but, subsequently, on March 5, 2010, granted the respondent's petition for certification to appeal.

On appeal, the respondent claims that the habeas court improperly determined that Babcock was burdened by an actual conflict of interest that deprived the petitioner of his constitutional right to the effective assistance of counsel. In this regard, the respondent makes three distinct claims, namely, that the court improperly determined that (1) the representation was prohibited by the Rules of Professional Conduct, (2) a breach of the rules was sufficient to establish a constitutional violation and (3) the record supported a conclusion that Babcock was burdened by an actual conflict of interest.⁴ We agree with each claim.

We begin with the standard of review and governing legal principles. “The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.... 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.... State v. Parrott, 262 Conn. 276, 286, 811 A.2d 705 (2003).... The right attaches at trial as well as at all critical stages of a criminal proceeding, including a hearing in probable cause. See State v. Gaines, 257 Conn. 695, 706–707, 778 A.2d 919 (2001).” (Citations omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582–83, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). In reviewing an ineffective assistance claim predicated on a conflict of interest, “[a]lthough the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of [the] case.... As such, that question requires plenary review....” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

I

We first consider the respondent's claim that the court improperly determined that Babcock's representation was prohibited by the Rules of Professional Conduct. Rule 1.7(a) of the Rules of Professional Conduct prohibits representation that involves a concurrent conflict of interest such that “(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....” Accordingly, the commentary to rule 1.7, subtitled “Conflicts in Litigation,” advises that, ordinarily, lawyers should decline to represent codefendants in criminal matters. Here, the court found that the petitioner and Fennely had adverse interests such that they should not have been represented by a single lawyer without giving their informed consent. See Rules of Professional Conduct 1.7(b).

Although Babcock did not represent both the petitioner and Fennely, the court imputed a conflict of interest to her on the ground that she and Fennely's counsel both worked in the Hartford office. Generally, there is support for the notion that two lawyers from the same firm may not ethically represent adverse interests. Rule 1.10(a) of the Rules of Professional Conduct ⁵ provides that one lawyer's conflicts generally are imputed to the members of his or her firm. “ ‘Firm’ ” is defined in rule 1.0(d), the commentary to which provides that “[w]ith respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct....” Rules of Professional Conduct 1.0, commentary. Here, the court found that that the two public defenders were, “for all intents and purposes, members of the same law firm.” The court found, as well, that there would be a high risk that the lawyers would have breached the attorney-client privilege if the matter had gone to trial, particularly if one had been required to cross-examine the other's client. The court concluded that the dual representation of codefendants with adverse interests was improper as a concurrent conflict of interest prohibited by rule 1.7 of the Rules of Professional Conduct.

The respondent contends that Babcock was not subject to imputation under rule 1.10 because she was a government employee, citing rule 1.10(d) and the commentary to rule 1.11.⁶ Rule 1.10(d) of the Rules of Professional Conduct provides: “The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.” Rule 1.11(d), in turn, subjects current government lawyers to rules 1.7 and 1.9, regarding personal conflicts of interest, but does not provide...