MARK ERICK WHEAT, PETITIONER V. UNITED STATES OF AMERICA No. 87-4 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States TABLE OF CONTENTS Question Presented Opinion below Jurisdiction Constitutional provision and rule involved Statement Summary of argument Argument: The district court properly determined that petitioner was not entitled to substitution of counsel A. The Sixth Amendment does not protect a defendant's decision to engage a particular lawyer B. Any right to engage the services of a particular lawyer is a qualified one, subject to reasonable restrictions C. Disqualification of counsel is permissible if multiple representation would violate ethical standards or undermine the integrity of the trial process D. Multiple representation posed a conflict of interest in this case Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1-14) is reported at 813 F.2d 1399. JURISDICTION The judgment of the court of appeals was entered on April 2, 1987. A petition for rehearing was denied on June 3, 1987. The petition for a writ of certiorari was filed on June 29, 1987, and was granted, limited to the first question presented, on October 5, 1987 (J.A. 126). The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION AND RULE INVOLVED The relevant portions of the Sixth Amendment to the Constitution and Rule 44 of the Federal Rules of Criminal Procedure are set forth at page 3 of petitioner's brief. QUESTION PRESENTED Whether the district court properly declined to permit the substitution of counsel shortly before trial, where the new lawyer already represented two other defendants charged with the same offenses and where one of the new lawyer's clients was expected to testify for the government. STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted of conspiracy to possess more than 1,000 pounds of marijuana with intent to distribute it, in violation of 21 U.S.C. 846, and five counts of possessing marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). /1/ He was sentenced to ten years' imprisonment and a $125,000 fine. The court of appeals affirmed (Pet. App. 1-14). 1. The evidence at trial, the sufficiency of which is not in dispute, showed that petitioner was part of a large-scale marijuana distribution scheme. From September 1981 through June 1984, petitioner received and stored some 12 tons of marijuana at his home. Most of the individual shipments exceeded one ton. Petitioner then distributed that marijuana to the conspirators' customers. Victor Vidal, who was a key government witness at petitioner's trial, was petitioner's immediate supplier. Vidal worked for co-defendant Juvenal Gomez-Barajas and others. Tr. 115-122, 127-134. On the Thursday before the scheduled Tuesday trial date, co-defendant Javier Bravo pleaded guilty to the conspiracy charge. Bravo was represented throughout the proceedings by attorney Eugene Iredale. At Bravo's guilty plea proceeding, and immediately after Bravo entered his plea, Iredale moved to substitute himself as petitioner's lawyer in place of petitioner's retained counsel. In the alternative, Iredale moved to add himself to petitioner's defense team. Neither petitioner nor his attorney was present at Bravo's guilty plea proceeding. Iredale stated, however, that petitioner wanted Iredale to represent him and that Bravo would not object if Iredale also represented petitioner. J.A. 57-58. The prosecutor expressed concern that Iredale already represented not only Bravo, but also Gomez-Barajas. Gomez-Barajas had been acquitted on the conspiracy charge in a separate trial but had entered a guilty plea to other related charges, and both Gomez-Barajas and Bravo were awaiting sentencing. The prosecutor pointed out that in the course of Gomez-Barajas's trial on the conspiracy charge, Iredale had repeatedly referred to petitioner during his cross-examination of government witness Victor Vidal. In addition, the prosecutor stated that although the matter was not settled, because Bravo had just pleaded guilty, there was a possibility that Bravo would be called as a government witness at trial. The district court set a hearing on the substitution motion for the following Monday, the day before trial. J.A. 58-63. At the hearing, the government objected to the proposed substitution of counsel. The prosecutor pointed out that over the weekend co-defendant Bravo had agreed to testify for the government at petitioner's trial and that he would provide evidence adverse to petitioner. The prosecutor also said that the government's position was that Gomez-Barajas was petitioner's ultimate supplier of marijuana, and that attorney Iredale's joint representation of both defendants would inevitably result in a serious conflict of interest on Iredale's part. Iredale represented to the court that all three defendants would waive any conflicts of interest arising from his representation of petitioner. The district court concluded, however, that there would be an irreconcilable conflict of interest facing any attorney who attempted simultaneously to represent Bravo, Gomez-Barajas, and petitioner. The court therefore denied the substitution motion, but granted a three-day continuance to petitioner's retained attorney. J.A. 98-112. /2/ 2. The court of appeals affirmed petitioner's convictions (Pet. App. 1-14). With respect to the issue before this Court, the court of appeals held that the district court did not abuse its discretion in declining to allow the substitution or addition of Iredale as trial counsel for petitioner. The court explained that a defendant's right to counsel of his choice is "qualified by the need to avoid undermining public confidence in the integrity of the legal system" (id. at 6). In this case, the court of appeals stated, the district court "was put in the position of balancing * * * two concerns -- the right to representation free of conflicts of interest, and the right to representation of one's choice -- knowing that denial of either of these would result in an appeal assigning the ruling as reversible error" (id. at 7). The court of appeals concluded that in the circumstances of this case, the trial court "justifiably deferred to strong sixth amendment interests in guarding against potential conflicts that were likely to develop" (Pet. App. 7). The court noted that it was undisputed that Iredale had received privileged information from co-defendants Bravo and Gomez-Barajas that could have been misused in defending petitioner. Furthermore, the court observed, since Bravo and Gomez-Barajas had not yet been sentenced, Iredale "could have received privileged information from (petitioner) that could have been misused in later representations of Gomez-Barajas and Bravo." Id. at 8. The court of appeals also pointed out that Iredale would not have been free to make arguments as to the relative culpability of the three defendants at sentencing or before the jury in petitioner's case. Since the interests of the three co-defendants were so plainly adverse, the court rejected petitioner's claim that the conflict of interest facing Iredale was speculative. Instead, the court found that there was a "significant potential" for misuse of privileged information that made the proposed triple representation improper. Id. at 8-9. The court of appeals held that even though Iredale stated that all three of his clients would waive their right to conflict-free counsel, the district court was not compelled to permit Iredale to represent petitioner. The court observed that district courts must have "some discretion" to override waivers of the right to conflict-free representation, both because "defendants may not be able to appreciate the significance of a waiver in light of potential conflicts," and because of the risk of "possible manipulation of testimony resulting from agreements between various clients, lawyers, and possible third persons not before the court" (Pet. App. 9-10). Since the potential for an actual conflict of interest during Iredale's representation of petitioner was "very likely," the court of appeals held that the district court did not abuse its discretion in declining to allow the substitution of Iredale as petitioner's lawyer on the eve of trial (id. at 10-11). SUMMARY OF ARGUMENT The Sixth Amendment does not guarantee a defendant the right to the services of a particular lawyer. Rather, the Assistance of Counsel Clause is satisfied as long as a defendant receives the effective assistance of some attorney. To the extent that the Constitution grants a defendant the right to demand representation by a specific attorney, it is the Due Process Clause, not the Sixth Amendment, that provides it. But whatever the foundation for petitioner's claimed right to counsel of his choice, that right is not absolute. At most, the Constitution proscribes only arbitrary or unreasonable interference with a defendant's selection of counsel. The decisions of this Court demonstrate that a defendant does not have an unqualified right to the counsel of his choice. For example, a trial court may deny a continuance even when such a course of action will interfere with a defendant's desire to be represented by a particular attorney. Similarly, a defendant has no absolute right to insist on being represented by a lawyer who is not admitted to practice before the court that is conducting his trial or hearing his appeal, and a defendant has no right to be represented by a layman. A defendant also may not insist on retaining an attorney who has represented parties who object to the new representation and who have interests that would be compromised by that representation. To this list of qualifications on a defendant's right to select counsel of his choice, the courts of appeals have added another: that a defendant may not insist upon the services of a particular lawyer where such representation would be contrary to established norms of professional legal conduct or would otherwise undermine the integrity of the trial process. While there is no flat prohibition against multiple representation of defendants in criminal cases, this Court has recognized for decades the evils inherent in multiple representation. There have been some calls for a complete ban on multiple representation in criminal cases, but prevailing ethical standards for lawyers have not gone that far. They do, however, prohibit multiple representation unless it is obvious that the lawyer can adequately represent the interest of each client and it is clear that no conflict is likely to develop in the course of the multiple representation. The district court and the court of appeals correctly concluded that attorney Iredale's representation of petitioner was very likely to result in a conflict of interest. One of Iredale's clients, Javier Bravo, was expected to testify against petitioner, and he ultimately did so. Another, Juvenal Gomez-Barajas, was petitioner's superior in the marijuana conspiracy. Under these circumstances, the conflicts inherent in Iredale's joint representation of petitioner, Gomez-Barajas, and Bravo were more than merely speculative, and the court's disqualification order was fully justified. The fact that a defendant's waiver of the right to conflict-free counsel might be effective to bar a subsequent ineffective assistance of counsel claim does not establish an affirmative right on the defendant's part to insist that the trial court accept counsel who is laboring under a conflict of interest or who faces a high likelihood that a conflict of interest will develop at trial. While petitioner may be willing to give up his own right to conflict-free counsel, he cannot "waive" the independent public interest in the fairness of criminal trials and the integrity of the legal profession. ARGUMENT THE DISTRICT COURT PROPERLY DETERMINED THAT PETITIONER WAS NOT ENTITLED TO SUBSTITUTION OF COUNSEL Petitioner claims (Br. 52-56) that the Sixth Amendment guarantees a defendant the right to the attorney of his choice, even when that attorney already represents another defendant involved in the same case, and even when a court finds that the multiple representation would likely result in an irreconcilable conflict of interest. Multiple representation can be barred, petitioner contends, only if one client-defendant refuses to waive his objection to the attorney's simultaneous or successive representation of the others. /3/ The Constitution, however, does not unconditionally guarantee a defendant the right to be represented by the lawyer of his choice, nor does it immunize from judicial scrutiny the decision by several defendants to be represented by the same lawyer. To the extent that any right to counsel of choice exists, the right is not absolute, but rather is subject to a variety of reasonable restrictions. One of the most basic of those restrictions is that a defendant cannot retain a particular attorney when doing so would be contrary to the settled ethical standards that govern the practice of attorneys before United States courts or would otherwise undermine the fairness and integrity of the trial process. Two threshold observations are necessary to put in context petitioner's claim that he has a constitutional right to insist upon the services of a particular lawyer. First, we do not suggest a rule that would interfere with the principle that criminal defendants ordinarily may retain any attorney they choose from among the universe of attorneys who are members in good standing of the bar of the court in which the defendant is to be tried. Rather, the issue presented here is whether that universe may be slightly constricted by eliminating those few attorneys or firms who cannot accept the representation without violating widely recognized ethical standards for the practice of law. Second, in contrast to other rights of criminal defendants assertable and enforceable directly against the government, the defendant's retention of a particular lawyer depends on that lawyer's willingness to undertake the representation -- something neither the court nor the prosecution can compel. Thus, the "right" to be represented by an attorney burdened with an actual or potential conflict of interest is entirely dependent upon the attorney's willingness to undertake such professionally questionable representation -- something we believe most attorneys would be unwilling to do. It is against that background that the alleged infringement of petitioner's interest in representation by counsel of his choice must be evaluated. A. The Sixth Amendment Does Not Protect A Defendant's Decision To Engage A Particular Lawyer Petitioner asserts (Pet. Br. 26-27) that "(f)ifty years of established precedent of this Court protect the Sixth Amendment right to counsel of choice in a criminal case." Petitioner is wrong. This Court has never held that the Assistance of Counsel Clause guarantees the right, absolute or otherwise, to engage the services of a particular lawyer. /4/ The Sixth Amendment ensures an accused "the Assistance of Counsel for his defence"; it does not suggest that the defendant is entitled to the attorney of his choice. Moreover, the purpose of the Sixth Amendment right to the assistance of counsel "is simply to ensure that criminal defendants receive a fair trial." Strickland v. Washington, 466 U.S. 668, 689 (1984). See also United States v. Morrison, 449 U.S. 361, 364 (1981). It is not designed to guarantee "a meaningful relationship" between a defendant and the counsel of his choice. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). The principal concern underlying the Sixth Amendment guarantee stemmed from the recognition that an unaided layman has little skill in arguing the law or in coping with an intricate procedural system. United States v. Ash, 413 U.S. 300, 307 (1973). In addition, the assistance of counsel was deemed necessary to minimize the imbalance in the adversary system that results when "the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U.S. 458, 463 (1938). There is no evidence, however, that the Sixth Amendment was intended to protect a defendant's decision to engage a particular lawyer. The debates that led up to the adoption of the Assistance of Counsel Clause throw little light on the matter; about all that can be drawn from the historical record is that the Framers intended to alter the rule, then current in England, that denied the assistance of counsel to defendants in all felony cases, except those in which treason was charged. See Faretta v. California, 422 U.S. 806, 823-826, 831 n.42 (1975); Powell v. Alabama, 287 U.S. 45, 60 (1932). This Court's cases construing the Assistance of Counsel Clause say nothing about the right to select a particular attorney. /5/ To the contrary, the Court has stressed that in judging whether the requirements of the Sixth Amendment have been satisfied, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." United States v. Cronic, 466 U.S. 648, 657 n.21 (1984). The reason for that is that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial" (id. at 658). Thus, as long as a defendant receives the assistance of a qualified attorney who provides effective representation, the demands of the Sixth Amendment have been met. Strickland v. Washington, 466 U.S. at 689; United States v. Cronic, 466 U.S. at 656; United States v. Morrison, 449 U.S. at 365. The attorney need not be the one the defendant would have preferred, for whatever reason, as long as the attorney provides capable representation. See United States v. Cronic, 466 U.S. at 657 n.21 ("If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance."). B. The Right To Engage The Services Of A Particular Lawyer Is A Qualified One, Subject To Reasonable Restrictions Although the Sixth Amendment does not protect a criminal defendant's desire to be represented by a particular attorney, that is not to say that the prosecution or the court can simply disregard that interest. The Due Process Clause of the Fifth Amendment protects a defendant against the creation of arbitrary or unreasonable impediments to his efforts to defend himself. See Powell v. Alabama, 287 U.S. at 69 (a trial court would violate "due process in the constitutional sense" if it "were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him"). That protection includes a prohibition against arbitrary or unreasonable interference with the defendant's efforts to obtain the services of a particular lawyer. By its terms, however, a rule against unreasonable restrictions on the defendant's efforts to retain a particular lawyer does not constitute an absolute right to counsel of the defendant's choice. Every court of appeals has explicitly held, or at least clearly recognized, that the accused has no absolute right to counsel of his choice. /6/ Thus, unlike the basic right to the assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), or the right of self-representation, Faretta v. California, supra, each of which must be respected in all serious criminal cases, the defendant's interest in being represented by counsel of his choice -- even if it enjoys some constitutional protection -- is subject to reasonable limitations. First, and most obvious, a defendant's right to counsel of his choice is limited by the willingness of a particular attorney to represent him. No court to our knowledge has ever held that it has the power to force a lawyer to represent a defendant simply because the defendant wants that particular lawyer. Thus, the right to counsel of choice, if any, is wholly unlike the right to counsel recognized in Powell and Gideon, which can and must be enforced directly by the courts. The decisions of this Court and other federal courts have recognized as legitimate and permissible a number of other restrictions on the asserted right to counsel of choice. For example, in view of the public need for the efficient administration of criminal justice, the trial court has the discretion to deny a continuance in order to control its own docket, even when denying the continuance will effectively interfere with a defendant's desire to be represented by a particular lawyer. /7/ The courts have also consistently held that even though an indigent defendant is entitled to the appointment of counsel, he is not entitled to the appointment of the particular lawyer of his choosing. /8/ Even when a defendant has succeeded in retaining the person he wishes, district courts have been held to possess considerable power to disapprove the defendant's choice of representative. Thus, a defendant is not entitled to be represented by a layman, /9/ even if the layman has legal training. /10/ And, as petitioner himself acknowledges (Pet. Br. 33 n.22), a court need not permit representation even by a licensed attorney if the attorney is not a member of the court's bar. /11/ Even if the defendant's chosen counsel is otherwise qualified to practice before the court, he may be disqualified if his participation as counsel for the defendant would unfairly prejudice the government or other parties. Thus, when a former prosecutor seeks to participate as defense counsel in a case in which he was previously involved as an attorney for the government, it is accepted without serious debate that counsel can be disqualified, even over the defendant's objection. /12/ Similarly, if a defense lawyer's representation would breach the attorney-client privilege of a current or former client who does not wish to waive that privilege, the attorney can be disqualified. /13/ And counsel can be disqualified if it appears that he will have to be called as a fact witness with respect to the transactions at issue in the trial, or where his personal involvement in the charged criminal conduct makes it difficult or impossible for him to perform adequately as counsel. /14/ That question presented in this case is whether that principle applies to cases in which the attorney's representation would violate prevailing ethical standards or would tend to undermine public confidence in the integrity of the legal system. C. Disqualification Of Counsel Is Permissible If Multiple Representation Would Violate Ethical Standards Or Undermine The Integrity Of The Trial Process 1. The problem with multiple representation stems from the principle that "(n)o man can serve two masters." Matt. 6:24. And the risk that an attorney serving two clients will "hold to the one, and despise the other" (ibid.) is nowhere so great as in the defense of a criminal prosecution. While there is no flat prohibition against multiple representation of defendants in criminal cases, and while such representation does not necessarily violate the Sixth Amendment's guarantee of effective assistance of counsel (Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Holloway v. Arkansas, 435 U.S. 475, 482 (1978)), this Court has long recognized the risks inherent in multiple representation. See, e.g., Glasser v. United States, 315 U.S. 60 (1942). As the court of appeals noted in United States v. Curcio, 680 F.2d 881, 887 (2d Cir. 1982), the interests of defendants can diverge at any stage in the proceedings. The jointly retained attorney may have to prefer the interests of one defendant over the other at almost any point -- in plea bargaining, in determining whether and how to present a defense, in deciding whether and how to cross-examine a witness whose testimony may help one defendant and hurt the other, in deciding whether either client should testify, and in formulating a closing argument and sentencing presentation that emphasizes the disparity in the evidence against each defendant and their relative culpability. The dilemmas created by multiple representation are particularly insidious because it is often hard to determine whether the resolution of those dilemmas is the product of trial strategy rather than a conflict of interest. See Curcio, 680 F.2d at 887. And it is particularly difficult to assess the damage caused by multiple representation, because the evil "is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and the sentencing process." Holloway v. Arkansas, 435 U.S. at 490. /15/ As the courts and commentators have explained, the problems posed by multiple representation are compounded by the fact that the lay defendant will often fail to appreciate the way in which a conflict can affect an attorney's performance of his duties. Nor can the court be depended upon to advise the defendant of all of the possibilities, for the court will usually lack sufficient familiarity with the facts, and may be prevented from gaining such familiarity by the Fifth Amendment and attorney-client privileges. The private bar cannot always be counted on to educate joint defendants adequately or to withdraw in all cases in which multiple representation involves serious conflicts. First, it may be in the interest of some defendants, but not others, that the joint representation be maintained; the lawyer saddled with these conflicting interests will often be in a poor position to give each client adequate advice regarding the decision whether to waive the right to conflict-free representation. Second, the retained counsel's financial interests inhibit voluntary withdrawal, and may contribute to the difficulty of giving the client disinterested advice on whether to retain separate counsel. /16/ In light of the pervasiveness and the subtlety of conflicts of interest resulting from multiple representation, some have called for the total abolition of multiple representation in criminal cases. Yet because multiple representation can be beneficial to defendants in some instances -- by permitting cost savings and making it easier to coordinate defenses -- the bench and bar have not insisted that every defendant be separately represented in every criminal case. While stopping short of an absolute prohibition, however, the legal profession and the courts have adopted intermediate steps designed to prevent ineffective assistance of counsel attributable to multiple representation. In the federal system, the most important safeguard against the risks created by multiple representation is Rule 44(c), Fed. R. Crim. P. That rule requires federal district courts to inquire into all instances of multiple representation of defendants and to "take such measures as may be appropriate," unless "it appears that there is good cause to believe no conflict of interest is likely to arise." Although Rule 44(c) does not specifically catalogue the measures that may be employed, the Advisory Committee Note to the rule expressly states that one of the measures that a court may consider is to "order that the defendants be separately represented in subsequent proceedings in the case." Rule 44(c), Advisory Committee Note, 77 F.R.D. 594, 601 (1978). The Advisory Committee addressed the question whether disqualifying defense counsel would violate the defendant's constitutional right to counsel of his choice and concluded that it would not. Quoting from United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978), the Advisory Committee stated (77 F.R.D. at 603) that a court's disqualification of an attorney representing multiple defendants would not violate the Sixth Amendment even if the defendants all expressed a desire to retain that attorney. Multiple representation that leads to a conflict of interest "not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant's comprehension of the waiver." Under those circumstances, "the court can elect to exercise its supervisory authority over members of the bar to enforce the ethical standard requiring an attorney to decline multiple representation" (ibid.). /17/ The bar has also sought to prevent multiple representation wherever it gives rise to the likelihood of a conflict of interest. The American Bar Association has promulgated a mandatory disciplinary rule forbidding multiple representation unless "it is obvious that (the lawyer) can adequately represent the interest of each (client) and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." Model Code of Professional Responsibility DR 5-105(C) (1980). /18/ The ABA's Standards Relating to the Defense Function Section 3.5(b) (1980) similarly notes that the "potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several codefendants except in unusual situations." 2. Petitioner asserts (Pet. Br. 52-53) that since he may waive his right to the assistance of counsel entirely, it follows that he may waive his right to conflict-free counsel. While that much is true, it does not mean that a court must accept his waiver, and that of his co-defendants, and permit them to insist on being represented by conflict-ridden counsel. The fact that a defendant may waive his right to have his trial conducted in a particular manner does not mean that he is entitled to insist on the trial being conducted in the opposite manner. The Court made that point clear in Singer v. United States, 380 U.S. 24, 34-35 (1965), where the Court concluded that a defendant's right to waive the Sixth Amendment guarantee of a trial by jury did not give him a right to insist on a bench trial. The Singer Court gave other similar examples: (1) an accused has no absolute right to compel a private trial, even though he has a right to a public trial; (2) an accused cannot compel the transfer of his trial to a district in which the crime was not committed, even though he has a right to be tried where the crime was committed; and (3) an accused cannot compel the government to try his case by stipulation, even though he has a right to confront the witnesses against him (380 U.S. at 35). There is no reason to accord any different treatment to petitioner's asserted right to counsel of his choice. /19/ Under this analysis, the fact that petitioner may have waived his right to conflict-free counsel does not end the matter. The Constitution does not entitle petitioner to insist on legal representation that does not meet established standards of ethical professional conduct or that would otherwise undermine the integrity of the trial process. By "waiving" his right to conflict-free counsel, petitioner cannot override the public interest in the fairness of criminal trials and the integrity of the legal profession. "The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice." Middlesex Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434 (1982). All the courts of appeals that have faced the issue recognize that a criminal defendant has no absolute right to insist on multiple representation in spite of conflicts of interest on his attorney's part. While emphasizing the importance of the defendant's right to counsel of his choice, each of the courts of appeals has preserved the district court's discretion to disqualify counsel in compelling circumstances, even in the face of a waiver. See, e.g., United States v. Diozzi, 807 F.2d 10, 12 (1st Cir. 1986) (district court has discretion to limit defendant's choice of counsel "when insistence upon it would disproportionately disadvantage the government or interfere with the ethical and orderly administration of justice"); United States v. O'Malley, 786 F.2d 786, 792 (7th Cir. 1986) (affirming order disqualifying defense counsel on motion of government, where former client of attorney will testify and attorney "possessed information with potential impeachment value which he gained through confidential communications" with the witness); United States v. Reese, 699 F.2d 803, 805 (6th Cir. 1983) ("compelling circumstances" may justify overriding waiver of right to conflict-free counsel); United States v. Flanagan, 679 F.2d 1072, 1074, 1076 (3d Cir. 1982) (affirming order disqualifying defense counsel where jointly represented defendants had inconsistent defenses), rev'd on other grounds, 465 U.S. 259 (1984); United States v. Agosto, 675 F.2d 965, 972, 976-77 (8th Cir.) (affirming order disqualifying defense counsel for secretary, where primary loyalty of counsel was to secretary's employer and co-defendant), cert. denied, 459 U.S. 834 (1982)); United States v. Dolan, 570 F.2d 1177, 1183 (1978) (affirming order disqualifying defense counsel, where defendants had inconsistent defenses). The Second and Fifth Circuits once appeared to endorse a rule flatly forbidding a district court from disqualifying counsel from multiple representation if the defendants were all willing to waive their right to conflict-free counsel. See United States v. Curcio, 680 F.2d 881, 885-888 & n.3 (2d Cir. 1982); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). Subsequent decisions from the Second Circuit, the Fifth Circuit, and the Eleventh Circuit, however, suggest that the principles of Garcia and Curcio are not as inflexible as they may have seemed, and that in making a disqualification decision, a district court may weigh not only the defendant's interest in representation by counsel of his choice, but other interests as well, including the interests of the public in the proper administration of justice. See In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 250-251 (2d Cir.), cert. denied, 475 U.S. 1108 (1986) ("courts have the power and duty to disqualify counsel where the public interest in maintaining the integrity of the judicial system outweighs the accused's constitutional right"); United States v. Ditommaso, 817 F.2d 201, 219 (2d Cir., 1987) (disqualification appropriate "when required by the fair and proper administration of justice"); United States v. James, 708 F.2d 40, 45 (2d Cir. 1983) (disqualification inquiry requires weighing competing interests "of the government, the witness, and the public" against the defendant's desire to be represented by a particular counsel); United States v. Snyder, 707 F.2d 139, 143 (5th Cir. 1983) (affirming order disqualifying defense counsel where defense counsel was an indicted co-conspirator); United States v. Salinas, 618 F.2d 1092, 1093 (5th Cir.) (affirming order disqualifying defense counsel where counsel was a target of an investigation concerning the events for which his clients were indicted), cert. denied, 449 U.S. 961 (1980); In re Paradyne Corp., 803 F.2d 604, 611 n.16 (11th Cir. 1986) (right to counsel "does not override the broader societal interests in the effective administration of justice * * * or in the maintenance of 'public confidence in the integrity of our legal system'"); United States v. Padilla-Martinez, 762 F.2d 942, 946 (11th Cir.), cert. denied, 474 U.S. 952 (1985). What all these courts of appeals have recognized is that district courts must preserve some discretion to override a defendant's waiver of conflict-free representation when the interests of justice so demand. That includes cases in which the courts must act to protect the integrity of the trial process, the ethical standards of the legal profession, or even, in egregious cases, fairness to the defendant. In sum, the federal rules, attorney ethical standards, and the lower courts all support the view that when there is a substantial risk of a serious conflict of interest as a result of joint representation, the district court should retain the discretion to insist on separate representation notwithstanding a "knowing and intelligent" waiver by the defendant and the other parties to the multiple representation. 3. Petitioner's waiver argument is fraught with difficulties for the fair and efficient administration of the criminal justice system. It is inherently difficult to determine whether a lay defendant has intelligently and knowingly waived any objections to conflicts of interest that may arise in the later course of criminal proceedings. See, e.g., United States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 437-439 (7th Cir. 1983). Because of the trial court's limited knowledge of the facts of a particular case before trial, as well as the court's inability to delve into attorney-client confidences, the district court is not in a position to educate the defendant fully with regard to the possible conflicts that could arise from a particular joint representation. Geer, supra, 62 Minn. L. Rev. at 141-152. Nor can conflict-ridden counsel be relied upon to obtain an informed waiver. Id. at 145; Rule 44(c), Advisory Committee Note, 77 F.R.D. at 596. In any event, it is quite likely that a lay defendant will fail to appreciate how the broad array of potential conflicts growing out of joint representation will injure his defense. Of necessity, he is to some extent buying a pig in a poke. For those reasons, a finding of intelligent and knowing waiver of the right to conflict-free counsel is tailor-made for post-conviction attack. See, e.g., United States ex rel. Tonaldi v. Elrod, supra; United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069 (1974); Rule 44(c), Advisory Committee Note, 77 F.D.R. at 594. Permitting district courts to disqualify defense counsel when the circumstances warrant therefore not only enforces the ethical standards of the legal profession, but furthers society's interest in the speedy and final determination of criminal cases as well. For by disqualifying counsel when there is a substantial potential for a conflict of interest, there will be no need for subsequent litigation focusing on the validity of the defendant's waiver of his right to conflict-free counsel and related due process claims. See United States v. Dolan, 570 F.2d at 1184; United States v. Mari, 526 F.2d 117, 119-121 (2d Cir. 1975) (Oakes, J., concurring), cert. denied, 429 U.S. 941 (1976). See generally Rule 44(c), Advisory Committee Note, 77 F.R.D. at 596-597. /20/ The criminal process is not merely a contest between the government and the accused. The criminal justice system also serves as "an outlet for community concern, hostility, and emotion." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980) (opinion of Burger, C.J.). That outlet for community concern and emotion, furthermore, is more than simply a channel for vengeance. Rather, to a people proud of its traditional freedoms, the criminal process is also a daily demonstration of the fairness of our law. It is for that important reason that our criminal process must "satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14 (1954). See Richmond Newspapers, Inc., 448 U.S. at 571-572 (opinion of Burger, C.J.); id. at 593-594 (Brennan, J., concurring in part and in result); Gannet Co. v. DePasquale, 443 U.S. 368, 427-429 (1979) (Blackmun, J., concurring in part and dissenting in part). Accordingly, it is not up to the defendant in a criminal trial to vitiate the fairness of that proceeding by deciding for himself to employ counsel rendered ineffective by conflicts of interest, for an unjust conviction not only injures the defendant but is inimical to the community's trust in the integrity of its courts. /21/ The stated goal of the criminal process is to "provide for the just determination of every criminal proceeding" (Fed. R. Crim. P. 2), and the fulfillment of that goal requires more than simply according substantial deference to a defendant's expressed desire to retain a particular attorney. It requires as well that the public's "interest in having criminal prosecutions decided on truthful and complete records" be given full recognition, even though that interest "does not necessarily coincide with that of the accused." Gannett Co. v. DePasquale, 443 U.S. at 428 (Blackmun, J., concurring in part and dissenting in part). /22/ In short, that a defendant has the right to a fair trial does not mean he has the right to insist upon an unfair trial. /23/ D. Multiple Representation Posed A Substantial Risk Of A Conflict Of Interest In This Case 1. The district court carefully balanced petitioner's desire to retain Iredale with competing considerations arising out of Iredale's representation of two other defendants and properly concluded that the proposed substitution would be improper. Iredale's proposed representation of three codefendants of varying levels of culpability, one of whom was scheduled to testify against the other and none of whom had yet been sentenced, was fraught with potential conflicts of interest. One of Iredale's clients, Bravo, would be testifying against another, petitioner; because it appeared that Iredale might need to cross-examine Bravo, his representation of petitioner presented the risk that he would either use confidential information obtained from Bravo, or sacrifice petitioner's interests by declining to cross-examine Bravo or by not cross-examining his vigorously. In addition, the multiple representation posed the risk that Iredale would not be able to defend one client by emphasizing the culpability of the others, including the one who had agreed to testify for the government. Under the ethical principles laid down for the legal profession, it was neither "obvious" that Iredale could "adequately represent the interest" of each defendant (Model Code of Professional Responsibility DR 5-105(C) (1980)), nor "clear that no conflict (was) likely to develop" (Section 3.5(b), Standards Relating to the Defense Function (1980)). Rather, as the district court concluded, "the Court really has no choice at this point other than to find that an irreconcilable conflict of interest exists" (J.A. 100). In such circumstances, the district court's refusal to permit the proposed substitution was entirely appropriate, notwithstanding petitioner's avowed desire to retain Iredale. A case like this one demonstrates the risks involved in giving dispositive weight to defendants' waivers of their right to conflict-free representation. Each of the defendants might well have perceived that he had something to gain from the multiple representation, while disregarding lwhat he had to lose. Bravo and Gomez-Barajas might well have been content to have Iredale represent petitioner, in the hope that Iredale would not conduct petitioner's defense in a way that would adversely affect them. In addition, Bravo might well have consented to the multiple representation, feeling secure that his own lawyer, Iredale, would not be unduly rigorous in challenging him on cross-examination. At the same time, petitioner might have consented to the multiple representation in the hope that retaining the attorney who represented the other defendants would minimize the risk that Bravo would testify in a damaging fashion at his trial or that Iredale would bring out information unfavorable to petitioner in the course of his representation of the other two defendants. Obviously, it would be difficult for Iredale to make special accommodations for one defendant without injuring another; yet each defendant might have assumed that he would be the one who would be the beneficiary of the conflict of interest, and thus each might have consented to the multiple representation even though that representation could well disadvantage one or even all three defendants. Several additional features of this case also support the district court's refusal to permit Iredale to represent petitioner. First, petitioner's interest in being represented by Iredale was entitled to less weight in the circumstances of this case than it might be accorded in other settings. Petitioner did not express an interest in having Iredale as his attorney until after Bravo pleaded guilty. At that time petitioner was already represented by the attorney of his choice, and he gave no indication that he was dissatisfied with that attorney's performance (Pet. App. 5). As petitioner's attorney explained to the district court, petitioner was not complaining about his retained counsel's performance; he simply wished to add Ireland to "his defense team" (J.A. 124). Second, as the court of appeals noted (Pet. App. 9), the substitution request was not made until shortly before the trial. All courts recognize that a district court has discretion to refuse to accept a substitution of counsel, in spite of a waiver from the defendant, when the request for substitution is made at the eleventh hour. See, e.g., United States v. Mastroianni, 749 F.2d 900, 913-914 (1st Cir. 1984); United States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980). In this case, the hearing on the motion had to be held on an expedited basis the day before trial, and in light of the short time available to resolve the matter, it is open to question whether valid waivers could have been obtained from all three defendants. In order to obtain waivers that would be secure from later challenge, it might have been necessary to ensure that both Bravo and Gomez-Barajas had separate representation for purposes of the substitution hearing, and it would have been necessary for the court to conduct a detailed inquiry in person, rather than simply accepting Iredale's representation that they were willing to waive any objection to his representation of petitioner. The shortness of time before trial made such procedures impractical, if not impossible. /24/ Third, the circumstances of the substitution motion in this case raised a particularly serious risk of undermining public confidence in the integrity of the legal system. Petitioner moved to have Iredale represent him immediately after one of the co-defendants represented by Iredale pleaded guilty, and at a time when it appeared likely that that co-defendant might testify for the government. The public could well view that arrangement with concern for two reasons. On the one hand, petitioner could be perceived as trying to influence the witness's testimony (e.g., to keep him from turning on petitioner at trial) by hiring that witness's attorney as his own. /25/ Alternatively, the selection of Bravo's attorney could be viewed as an effort on petitioner's part to obtain the advantage of confidential information revealed by Bravo to his attorney before Bravo testified against petitioner. The risk of adverse public perception was increased in this case by the fact that Iredale represented not only Bravo, but Gomez-Barajas as well. The public could conclude that by retaining Iredale, petitioner was seeking to ensure that Gomez-Barajas, petitioner's alleged marijuana supplier, would not become a government witness and testify against petitioner at trial. Alternatively, the public could have perceived that the multiple representation of petitioner and Gomez-Barajas was engineered to protect Gomez-Barajas from being called as a possible defense witness for petitioner or otherwise being embarrassed by petitioner's defense. Iredale's representation of both Gomez-Barajas and petitioner would have made an objective judgment difficult as to whether it might be in petitioner's interest to call Gomez-Barajas as a witness. When the substitution was first proposed, the prosecutor noted that petitioner's retained attorney had expressed "at least the potential desire of calling * * * Mr. Juvenal Gomez-Barajas as a possible witness" (J.A. 65). Iredale dismissed that suggestion peremptorily: "Well, this is the first I have ever heard of that. Mr. Gomez is not going to testify in an American courtroom ever again in his life" (ibid.). Iredale was thus making it clear where his primary loyalties lay and the consequent difficulty of making an independent judgment of petitioner's interest. In light of the hierarchical structure of many criminal conspiracies, joint representation of the lead defendant and a lesser defendant is rife with special difficulties of this sort. Indeed, in some cases joint representation has been used as a means of policing lesser figures in the conspiracy and ensuring that they do not turn on the higher-ups. See Staff of President's Comm'n on Organized Crime, Materials on Ethical Issues for Lawyers Involved with Organized Crime Cases at 4-7 (1985). Thus, even apart from the adverse effects of the potential conflicts of interest on the three defendants represented by Iredale, the negative impact of Iredale's representation on the public perception of the fairness of the proceedings was sufficient to justify the district court's action in this case. /26/ 2. Even if the Court were to determine that the district court abused its discretion /27/ when it declined to permit Iredale to substitute as petitioner's counsel, petitioner's conviction should nonetheless be affirmed. Petitioner has failed to show any prejudice stemming from the district court's ruling. He has not challenged the effectiveness of his trial counsel nor "show(n) how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. at 659 n.26. Any such error, therefore, must be adjudged harmless. Some courts of appeal have indulged a presumption of prejudice stemming from the wrongful denial of a defendant's choice of counsel. /28/ But such a rule of automatic reversal is at odds with this Court's decisions applying Sixth Amendment principles. /29/ This Court has repeatedly stressed that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." United States v. Cronic, 466 U.S. at 658. "(A) fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Strickland v. Washington, 466 U.S. at 685. Petitioner does not dispute that he received such a trial here. In certain limited circumstances "that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified" -- such as "the complete denial of counsel" or "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing" -- this Court has not required a showing of prejudice because "there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." United States v. Cronic, 466 U.S. at 658-659. "Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Id. at 659 n.26; see United States v. Morrison, 449 U.S. at 365. No such showing has been made here. /30/ Petitioner was found guilty by a jury of his peers after a trial in which he was effectively represented by constitutionally adequate counsel. The fact that his preferred counsel was prevented from representing him because of conflicts of interest does nothing to cast doubt upon the reliability of that finding of guilt. It is clear that "the kind of testing envisioned by the Sixth Amendment has occurred" in this case (United States v. Cronic, 466 U.S. at 656). Accordingly, no legitimate theory of Sixth Amendment rights should require a rematch with players more to petitioner's liking. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General LOUIS M. FISCHER Attorney DECEMBER 1987 /1/ Petitioner was acquitted on one additional substantive count, as well as on a charge of conspiring to import marijuana (21 U.S.C. 963). /2/ Petitioner's retained attorney pointed out to the court that petitioner had not complained about the quality of his representation. Rather, counsel had himself advised his client to make the substitution, because he thought it was advisable to have Iredale's assistance. J.A. 124. /3/ Petitioner appears to argue that a court may not disqualify counsel even in the face of an actual conflict of interest, as long as waivers have been obtained from the defendant and the other affected parties (Br. 29, 56). At other points, however, petitioner appears to make the more limited argument that a district court may not disqualify counsel when there is only a potential, possible, or "speculative" conflict of interest (see Br. 27, 29, 52). Because disqualification decisions have to be made in advance of trial, and often on the basis of limited information about the defense theory of the case, we believe it makes little sense to attempt to distinguish between "actual" and "potential" conflicts of interest. If, in the court's assessment, there is a substantial likelihood that an irreconcilable conflict of interest will develop at trial, disqualification should be permissible regardless of whether the court concludes that the conflict has become "actual" at the time the court is required to rule. /4/ A number of courts of appeals have suggested, without significant analysis, that the Sixth Amendment provides some protection for a defendant's choice of counsel. But those courts have also recognized that any right to counsel of choice is necessarily limited, and the decisions themselves rest upon an overly expansive interpretation of the Assistance of Counsel Clause. See, e.g., United States v. Agosto, 675 F.2d 965, 969 (8th Cir.), cert. denied, 459 U.S. 834 (1982); Linton v. Perini, 656 F.2d 207, 209-211 (6th Cir. 1981), cert. denied, 454 U.S. 1162 (1982); United States v. Laura, 607 F.2d 52, 56-57 (3d Cir. 1979); United States v. Burton, 584 F.2d 485, 490 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069 (1979); United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976) (en banc), cert. denied, 429 U.S. 1104 (1977); United States v. Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976); United States v. Armedo-Sarmiento, 524 F.2d 591, 592 (2d Cir. 1975); United States v. Inman, 483 F.2d 738, 739-740 (4th Cir. 1973), cert. denied, 416 U.S. 988 (1974). /5/ Faretta v. California, 422 U.S. 806 (1975), which is often cited in support of an asserted constitutional right to choose a particular lawyer has nothing to do with the choice of counsel. The Court in Faretta held that implicit in the structure of the Sixth Amendment is the right of a criminal defendant to forgo counsel and to represent himself. 422 U.S. at 818-820 & n.15. The Court did not suggest that the right to forgo counsel encompasses the right to choose a particular attorney if the defendant seeks to be represented by counsel. Powell v. Alabama, 287 U.S. 45 (1932), is also unenlightening on this point. Powell had nothing to do with a court's rejection of a defendant's chosen counsel; rather, the state court system at issue in Powell had denied the defendants the opportunity to obtain any counsel at all. This occurred, moreover, at a time when appointment of counsel for indigent defendants was far from common. Therefore, when the Court stated that the defendants should have been "afforded a fair opportunity to secure counsel of (their) choice" (287 U.S. at 53), the Court was not suggesting that the defendants had the right to engage the services of a particular lawyer. Rather, the Court was emphasizing that the defendants should have been given the opportunity to obtain the effective assistance of counsel by the only certain method then available -- employment of private counsel. Likewise, in Chandler v. Fretag, 348 U.S. 3, 9 (1954), the Court stated that the defendant's right to be heard through his own counsel was "unqualified." The Court, however, used that term not to suggest that a defendant has an absolute right to counsel of his choice, but merely to contrast his "qualified right" to appointed counsel with his undoubted right to hire counsel on his own. Petitioner's reliance (Pet. Br. 31) in Flanagan v. United States, 465 U.S. 259 (1984), is also misplaced. In the passage that petitioner cites, the Court was discussing whether a defendant's "asserted right to counsel of one's choice" was "effectively unreviewable on appeal from a final judgment" (id. at 267, 268 (emphasis added)). Because the Court found that an order disqualifying counsel "does not qualify as an immediately appealable collateral order" (id. at 269), the Court had no occasion to reach question concerning the existence of that asserted right to counsel of choice. A closer, if older, authority is Andersen v. Treat, 172 U.S. 24 (1898), which suggests that the choice of a particular lawyer is not protected by the Sixth Amendment. In Andersen, a habeas corpus petitioner claimed that "he was denied 'the assistance of counsel for his defense,' that is, the assistance of counsel of his own selection" (id. at 29). The defendant's complaint was that he was not allowed to retain the lawyer hired by five other suspects because the district judge believed his defense to be "inconsistent with the defense of others charged" (id. at 30). This Court affirmed the denial of habeas corpus relief, suggesting that the claim did not reflect the denial of an "essential right" of the defendant's (id. at 31). /6/ See, e.g., United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434 U.S. 986 (1977); United States v. Ostrer, 597 F.2d 337, 341 (2d Cir. 1979); United States v. Dolan, 570 F.2d 1177, 1183 (3d Cir. 1978); United States v. Inman, 483 F.2d 738, 739-740 (4th Cir. 1973), cert. denied, 416 U.S. 988 (1974); United States v. Kitchin, 592 F.2d 900, 903 (5th Cir.), cert. denied, 444 U.S. 843 (1979); Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981), cert. denied, 454 U.S. 1162 (1982); United States v. Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976); United States v. Agosto, 675 F.2d 965, 970 n.4 (8th Cir.), cert. denied, 459 U.S. 834 (1982); United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir. 1978); United States v. Peister, 631 F.2d 658, 661 (10th Cir. 1980), cert. denied, 449 U.S. 1126 (1981); United States v. Hobson, 672 F.2d 825, 827 n.* (11th Cir.), cert. denied, 459 U.S. 906 (1982); United States v. Burton, 584 F.2d 485, 489 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069 (1979). /7/ See generally Ungar v. Sarafite, 376 U.S. 575, 589 (1964) ("The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel."). See also United States v. Burton, 584 F.2d at 489-492; United States v. Poulack, 556 F.2d at 86; United States v. Inman, 483 F.2d at 740; United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213-1216 (3d Cir. 1969). /8/ Morris v. Slappy, supra; United States v. Davis, 604 F.2d 474, 478-479 (7th Cir. 1979); United States v. Smith, 464 F.2d 194, 197 (10th Cir.), cert. denied, 409 U.S. 1066 (1972); United States v. White, 451 F.2d 1225, 1226 (6th Cir. 1971). /9/ United States v. Bertolini, 576 F.2d 1133 (5th Cir. 1978); United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.), cert. denied, 437 U.S. 906 (1978); United States v. Wilhelm, 570 F.2d 461, 466 (3d Cir. 1978); United States v. Taylor, 569 F.2d 448, 450-451 (7th Cir.), cert. denied, 435 U.S. 952 (1978); United States v. Kelley, 539 F.2d 1199, 1203 (9th Cir.), cert. denied, 429 U.S. 963 (1976). /10/ United States v. Grismore, 546 F.2d 844, 847 (10th Cir. 1976) (disbarred lawyer); United States v. Hinderman, 528 F.2d 100, 102-103 (8th Cir. 1976) (same). See generally Ex parte Wall, 107 U.S. 265, 288 (1883) (holding that criminal conviction is not a prerequisite for striking attorney from rolls of practicing attorneys, stating "the courts ought not to hesitate * * * to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws"). /11/ See Leis v. Flynt, 439 U.S. 438 (1979) (holding that out-of-state attorneys, not admitted to practice law in Ohio, had no constitutional right of their own to appear pro hac vice on behalf of criminal defendant in Ohio state courts). See also Bedrosian v. Mintz, 518 F.2d 396, 400-401 (2d Cir. 1975) (state court's refusal to appoint out-of-state counsel for indigent defendants held constitutional). See generally 28 U.S.C. 1654 (permitting parties in federal courts to conduct their cases themselves or by such counsel "as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein"); Rules 5 and 6 of the Supreme Court of the United States (regulating appearance of attorneys before this Court). /12/ See United States v. Washington, 797 F.2d 1461, 1466 (9th Cir. 1986); United States v. Miller, 624 F.2d 1198 (3d Cir. 1980); United States v. Ostrer, 597 F.2d at 341; United States v. Kitchin, 592 F.2d at 903. /13/ See United States v. Ditommaso, 817 F.2d 201, 220 (2d Cir. 1987); United States v. O'Malley, 786 F.2d 786, 792 (7th Cir. 1986); United States v. James, 708 F.2d 40, 46 (2d Cir. 1983); United States v. Provenzano, 620 F.2d 985, 1005 (3d Cir.), cert. denied, 449 U.S. 899 (1980). /14/ See Grady v. United States, 715 F.2d 402, 404 (8th Cir. 1983); United States v. Snyder, 707 F.2d 139, 146 (5th Cir. 1983); United States v. Salinas, 618 F.2d 1092, 1093 (5th Cir.), cert. denied, 449 U.S. 961 (1980); United States v. Castellano, 610 F. Supp. 1151, 1165 (S.D.N.Y. 1985). /15/ See generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 125-135 (1978); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 941-950 (1978); Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J. Crim. L. & Criminology 226, 233-239 (1977); Developments in the Law, Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1394-1396 (1981). See also United States v. DeFillipo, 590 F.2d 1228, 1238 & n.17 (2d Cir.), cert. denied, 442 U.S. 920 (1979). /16/ See Geer, supra, 62 Minn. L. Rev. at 145, 152-153; Judd, Conflicts of Interest -- A Trial Judge's Notes, 44 Fordham L. Rev. 1097, 1099-1107 (1976); Lowenthal, supra, 64 Va. L. Rev. at 950-972 (survey showing that while many public defenders never engage in multiple representation, the private bar is far more willing to represent co-defendants). See also Cuyler v. Sullivan, 446 U.S. at 346-347 n.11 (noting that while public defender offices have "a strong policy against undertaking multiple representation in criminal cases," the "private bar may be less alert to the importance of avoiding multiple representation"). Cf. Wood v. Georgia, 450 U.S. 261, 265 n.5 (1981) (Court reached conflict-of-interest question even though the issue was not raised in the certiorari petition, because the attorney who "prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused," and it was "unlikely that he would concede that he had continued improperly to act as counsel"). /17/ With regard to appointed lawyers, the Criminal Justice Act provides that separate counsel must be appointed "for defendants who have such conflicting interests that they cannot properly be represented by the same counsel." 18 U.S.C. 3006A(b). The Act contains no provision for defendants to insist on joint representation, and it has been construed to provide the district court with the discretion to refuse to permit joint representation for indigent defendants. See Ford v. United States, 379 F.2d 123, 126 (D.C. Cir. 1967). /18/ The Model Rules of Professional Conduct provide that a lawyer "shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation." Model Rules of Professional Conduct Rule 1.7 (1983). That rule does not retreat from DR 5-105(C). If, in a particular case, it is reasonable to conclude that conflicts of interest will arise, joint representation may not be undertaken, notwithstanding counsel's willingness to undertake it. Furthermore, the comment to the rule emphasizes that "(t)he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant." /19/ In Faretta, the Court was careful to point out that the right of self-representation did not exist because it was possible to waive the right to the assistance of counsel, but rather because that right had an independent constitutional basis. See 422 U.S. at 819-820 n.5 ("We do not suggest that this right (of self-representation) arises mechanically from a defendant's power to waive the right to the assistance of counsel. * * * On the contrary, the right must be independently found in the structure and history of the constitutional text."). /20/ We are disturbed by the implication in some cases that defendants may attack their convictions on conflict of interest grounds even after validly waiving their right to conflict-free counsel. See, e.g., United States ex rel. Tonaldi v. Elrod, 716 F.2d at 436 (although court finds that habeas corpus petitioner knowingly waived his right to separate counsel, it refuses to foreclose possibility that petitioner's attorney "acted incompetently in deciding to represent the petitioner and his co-defendants" despite the waiver); United States v. Vowteras, 500 F.2d at 1211 (the defendants having been "fully advised of the facts underlying the potential conflict * * * cannot now repudiate their choice (of joint representation) in the absence of a credible showing of 'some specific instance of prejudice, some real conflict of interest, resulting from a joint representation'"). See also Cuyler v. Sullivan, 446 U.S. at 353 (Brennan, J., concurring in part and in result); id. at 354 n.1 (Marshall, J., concurring in part and dissenting in part). In our view, a defendant who has effectively waived his right to conflict-free counsel should be forever barred from raising ineffective assistance of counsel claims based on the conflicting interests of counsel. See, e.g., United States v. Flanagan, 679 F.2d at 1076 ("A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack."). To the extent that a valid waiver is not to be construed as genuinely final, however, that is all the more reason to recognize the authority of the district court to require separate counsel in cases in which there is a substantial likelihood that the representation will be infected by a conflict of interest. /21/ See Geer, supra, 62 Minn. L. Rev. at 155-157; Comment, supra, 68 J. Crim. L. & Criminology at 251; Developments, supra, 94 Harv. L. Rev. at 1394. /22/ Cf. Fed. R. Crim. P. 11(f), which requires that "(n)otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." Thus, it is not up to the defendant to determine that he shall be convicted in circumstances falling below certain minimum standards insisted upon by society. /23/ A defendant's willingness to accept an unfair trial is not as farfetched as it sounds. A less culpable defendant may be willing to forgo efforts to protect his own rights in order to help a more culpable co-defendant, who may be a friend or family member. Geer, supra, 62 Minn. L. Rev. at 145. Worse, he may do so to forestall retaliation from a more powerful co-defendant or from a criminal organization of which he is a member. See Staff of President's Comm'n on Organized Crime, Materials on Ethical Issues for Lawyers Involved with Organized Crime Cases at 4-7 (1985) (finding that members of organized crime families are "required to have lawyers trusted by the Family," that "more often than not the attorney's fees are paid by third parties," that "(a)lmost invariably fees are paid in cash," that "(c)ertain defendants would be represented for a nominal fee since the attorney had already been paid from another source," and that "(t)he attorney is expected to, and will, inform the boss when a client is suspected of cooperating with the government"). /24/ Petitioner's statement (Br. 60) that this "inquiry could have been conducted in less than an hour" is wholly unsupported. The trial judge made it very clear that he thought that a detailed and time-consuming inquiry would have been necessary (J.A. 119-120): (O)ne of the things that troubles me about this whole thing, and admittedly it's a difficult call for me, is that Mr. Wheat retained counsel of his choice initially. His counsel has been apparently properly representing him all through this case for months and months and months and up until Thursday of last week was * * * ready, willing and able to proceed with this trial tomorrow morning at 9:00 o'clock. And then all of a sudden we are faced with this last minute problemn and I'm faced with whether I'm going to have to have hearings with respect to these conflict issues, call the defendants in here, put them on the stand, go through hearings, and I just think it's too late to get involved in this. I recognize Mr. Wheat has a constitutional right to counsel of choice but he, of course, made that choice a long time ago and hired Mr. Semco. So I think it's too late in the game to get involved in this. See also J.A. 1001, 105. /25/ Iredale's assurance to the court (J.A. 57) that Bravo "has no potential evidence or information he could give the Government against (petitioner)" would merely add fuel to that fire. In fact, as petitioner acknowledges (Br. 23), Bravo corroborated the key government witness against petitioner on two overt acts charged in the indictment (see J.A. 20). Bravo delivered marijuana to Vidal, which Vidal in turn gave to petitioner (see Tr. 122, 302, 729, 733). Thus, the public could be properly concerned in this case about "possible manipulation of testimony resulting from agreements between various clients, lawyers, and possible third persons not before the court" (Pet. App. 10). Petitioner's repeated assertion (Br. 46-47, 55, 62) that the prosecutor called Bravo as a witness as a way of "engineer(ing)" a conflict has no basis in the record. The trial judge, who was thoroughly familiar both with the lawyers and with the facts of the case, dismissed that suggestion out of hand (J.A. 67), and it is belied by the valuable testimony actually provided by Bravo. /26/ Some of the difficulties that might have resulted from the joint representation were illustrated at trial when Iredale appeared in court with Bravo. Petitioner moved for a mistrial, arguing that since Iredale's name had been prominently mentioned as the lawyer who had cross-examined Vidal at a prior trial (while representing Gomez-Barajas) and since Bravo testified that he had pleaded guilty, the jury would assume that Iredale had concluded that, notwithstanding his cross-examination, Vidal was a credible witness. Tr. 728-732, 736-737. /27/ Because of the broad discretion granted to district courts under Rule 44(c), as well as their superior vantage point for assessing the potential for conflicts of interest in particular cases, we submit that a more exacting standard of review would be inappropriate. /28/ See, e.g., Pet. App. 6; United States v. Rankin, 779 F.2d 956, 960-961 (3d Cir. 1986); Linton v. Perini, 656 F.2d at 211-212. /29/ Petitioner relies (Br. 63-64) on a long quotation from Flanagan v. United States, 465 U.S. at 267-268, as if it disposed of the question. It does not. In the section quoted, the Court was simply making the point that if the defendants' asserted right was like the right to the appointment of counsel, then prejudice would be presumed. The Court made clear that it was not resolving that issue when it stated, immediately after the passage quoted by petitioner, that even if petitioners' asserted right "is one that is not violated absent some specifically demonstrated prejudice to the defense," a disqualification order is still not immediately appealable. 465 U.S. at 268; see also id. at 269 ("whether or not petitioners' claim requires a showing of prejudice (to obtain a reversal of any subsequent conviction), a disqualification order does not qualify as an immediately appealable collateral order"). /30/ Justice Brennan, concurring in the judgment in Morris v. Slappy, 461 U.S. at 28, has noted that "there is no way to know whether the character of the proceedings would have changed, whether counsel would have made different decisions, or whether the defense strategy would have been different if (counsel of choice) had represented (the defendant). Conclusions based on inquiries into such questions would amount to nothing more than 'unguided speculation.'" We agree with that premise; no such speculative inquiry into "what might have been" is justified. We disagree, however, with Justice Brennan's conclusion that "(u)nder these circumstances, it is reasonable and just not to require a showing of prejudice" (ibid.). Rather, the Court's cases indicate that, absent a showing that counsel who actually represented petitioner provided ineffective assistance, so as to undermine the reliability of the judgment of guilt, petitioner received a fair trial. Strickland v. Washington, 466 U.S. at 687. That inquiry is highly concrete. A rule of automatic reversal in this context would mark a reversion to a "sporting theory" of justice in which the ideal would be to make the two sides as evenly matched as possible. Instead, a criminal trial is, and should be, a search for truth in a fair proceeding. Petitioner had his day in court and was found guilty. Unless he can show that the trial he received was "unfair" -- as measured against constitutional standards of adequacy and not against what some other counsel might have done -- then that conviction should stand. See Morris v. Slappy, 461 U.S. at 15 ("A criminal trial is not a 'game,' and nothing in the record of (petitioner's trial) gives any support for the conclusion that he (is) constitutionally entitled to a new trial."). The Sixth Amendment does not distinguish different levels of constitutionally adequate representation.