United States v. Curcio

In United States v. Curcio, 680 F2d 881 [2nd Cir. 1982], in which a conflict arose from a defense attorney wishing to represent two co-defendants in the same matter, the Second Circuit held that a court should appoint independent counsel to advise a defendant of the nature of the conflict, the right to loyal and effective counsel, and the risks of continuing with conflicted or potentially conflicted counsel. (Id, at 889.) The defendant must have enough time to "digest" the information and situation before making a decision. Id. If a defendant indicates he wishes to move forwarded with the conflicted attorney, the court's task is to assess whether the defendant's decision to do so is knowing and voluntary. (Id, at 888.) In United States v. Curcio, 694 F.2d 14, 25 (1982), the Court held that defendants are sometimes better positioned to adequately determine the advantages and disadvantages of joint representation. Defendants and their respective attorneys are the ones who are fully aware of what type of defense they will put forth. Id. Defendants, not the judges or prosecutors, will bear the responsibility and consequences of a conviction. Id. Accordingly, an evaluation of a conflict of interest should place much of the burden for a decision to go forward, despite a potential or perceived conflict of interest, with the defendant. The decision is primarily for the defendant, and the judge should not assume too much of a paternalistic attitude in protecting the defendant. Id..