united-states contract-law conflict-of-interest sixth-amendment
Is the right to effective assistance of counsel an inherent right or a privilege
<p>Effective assistance of counsel is a right provided by the 6th amendment. A conflict free counsel is paramount in receiving effective assistance. Can a statute/law deny one a conflict free counsel?
Of course one can represent themselves but if they cant, are they subject to a statutorily imposed conflict of interest of the attorney? Does this interfere with the contract clause or public policy against unconscionable contract? Is there a recourse available?</p>

<p>The right to be represented by counsel in criminal trials is found in the Sixth Amendment, made effective against the states via the Fourteenth Amendment.</p>
<p>The US Supreme Court has held that if an accused has not had the effective assistance of counsel at a criminal trial in the US, whether because the counsel was incompetent, or failed to act diligently, or had a conflict of interest, or for some other reason, then the accused did not have due process of law, and under the fifth or fourteenth amendment (federal or state trial) the verdict must be set aside, and the accused must be given a new trial or set free, <strong>If</strong> effective assistance would probably have caused a different result.</p>
<p>No state law can change this, any more than it can dispense with any of the other elements of Due Process, Such as proper notice of the charges, a hearing before an impartial trier of fact, and the like. It is a constitutional right. US Courts mostly do not use the term &quot;inherent right&quot; for such rights, but neither do they usually call it a &quot;privilege&quot;.  In any case, it is not subject to cancellation by state law.</p>
<p>The Legal Information institute (LII) page <a href="https://www.law.cornell.edu/wex/effective_assistance_of_counsel" rel="nofollow noreferrer">&quot;Effective Assistance of Counsel&quot;</a> reads:</p>
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<p>The Sixth Amendment guarantees a criminal defendant’s right to effective assistance of counsel. The purpose of this guarantee is to increase the fairness and likelihood of justice ultimately being reached in a criminal justice system that places private individuals and the government in an adversarial position. The accused defendant must be assisted and represented by either a retained or appointed attorney, who makes decisions about defense strategy without interference from the government.</p>
<p>Assistance of counsel is not considered effective if the attorney does not provide the defendant with adequate legal assistance. The Supreme Court held in <em>Strickland v. Washington</em> that the proper standard for constitutional assistance of counsel is that attorney performance must be objectively reasonable given the totality of circumstances. Once the defendant raises the issue of ineffective assistance of counsel, the burden is on the defendant to show how the attorney’s performance fell below the objective standard of reasonableness. The judge makes the final decision as to whether counsel was ineffective and must be careful to not allow hindsight bias to affect this judicial scrutiny.</p>
<p>A defendant claiming ineffective assistance of counsel for the purpose of overturning a conviction or a death sentence must prove two things: First, they must prove that the assistance of counsel was unreasonable and therefore ineffective. Second, they must prove that if it was not for the errors made by the attorney, there is a reasonable probability that the proceeding would have had a different outcome. That probability must be significant enough to undermine the judge’s confidence in the outcome of the case and the fairness of the trial. Because of this requirement, unreasonable and unprofessional errors made by a defense attorney will not overturn a conviction or death sentence if they were unlikely to have caused the conviction or sentence. Most attorney errors, even if unreasonable, are therefore not considered ineffective assistance of counsel.</p>
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<p>In the case of <a href="https://supreme.justia.com/cases/federal/us/466/668/#tab-opinion-1955515" rel="nofollow noreferrer"><em>Strickland v. Washington</em>, 466 U.S. 668 (1984)</a> in whih\ch the US Supreme Court fiert considered a general claim of ineffectiveness of counsel the Court wrote (at 684):</p>
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<p>In a long line of cases that includes Powell v. Alabama, 287 U. S. 45 (1932), Johnson v. Zerbst, 304 U. S. 458 (1938), and Gideon v. Wainwright, 372 U. S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through
the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause</p>
<p>...</p>
<p>Thus, 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. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the &quot;ample opportunity to meet the case of the prosecution&quot; to which they are entitled. <em>Adams v. United States ex rel. McCann</em>, 317 U. S. 269, 317 U. S. 275, 317 U. S. 276 (1942); see <em>Powell v. Alabama</em>, supra, at 287 U. S. 68-69.</p>
<p>Because of the vital importance of counsel's assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. See <em>Algersinger v. Hamlin</em>, 407 U. S. 25 (1972); <em>Gideon v. Wainwright</em>, supra; <em>Johnson v. Zerbst</em>, supra. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.</p>
<p>For that reason, the Court has recognized that &quot;the right to counsel is the right to the effective assistance of counsel.&quot; <em>McMann v. Richardson</em>, 397 U. S. 759, 397 U. S. 771, n. 14 (1970) [The opinion lists several ways in which the government t might interfere, rendering counsel ineffective.]  Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render &quot;adequate legal assistance,&quot; <em>Cuyler v. Sullivan</em>, 446 U.S. at 446 U. S. 344. Id. at 446 U. S. 345-350 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective).</p>
<p>... The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.</p>
<p>The same principle applies to a capital sentencing proceeding such as that provided by Florida law. ...  A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision, See Barclay v. Florida, 463 U. S. 939, 463 U. S. 952-954 (1983); <em>Bullington v. Missouri</em>, 451 U. S. 430 (1981), that counsel's role in the proceeding is comparable to counsel's role at trial -- to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel's duties, therefore, Florida's capital sentencing proceeding need not be distinguished from an ordinary trial.</p>
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<p>A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that <strong>counsel's performance was deficient</strong>. This requires showing that counsel made errors so serious that counsel was not functioning as the &quot;counsel&quot; guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the <strong>deficient performance prejudiced the defense</strong>. This requires showing that counsel's errors were so serious as to <strong>deprive the defendant of a fair trial</strong>, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.</p>
<p>As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. See Trapnell v. United States, 725 F.2d at 151-152. The Court indirectly recognized as much when it stated in McMann v. Richardson, supra, at 397 U. S. 770, 397 U. S. 771, that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not &quot;a reasonably competent attorney&quot; and the advice was not &quot;within the range of competence demanded of attorneys in criminal cases.&quot; See also Cuyler v. Sullivan, supra, at 446 U. S. 344. [<em>Emphasis added</em>]</p>
<p>When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an <strong>objective standard of reasonableness.</strong> [<em>Emphasis added</em>]</p>
<p>...</p>
<p>Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See <em>Cuyler v. Sullivan</em>, supra, at 446 U. S. 346. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See <em>Powell v. Alabama</em>, 287 U.S. at 287 U. S. 68-69.</p>
<p>These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.</p>
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<p>In civil, as opposed to criminal cases, the requirement of effective assistance of counsel is not enforced so strictly, but a party is surely entitled to a lawyer who has no conflict of interest, unless the party makes an informed waiver of this right. The Sixth Amendment applies only to criminal cases.</p>

<p>The Sixth Ammendment says:</p>
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<p>In all criminal prosecutions, the accused shall enjoy the right... to have the  Assistance of Counsel for his defence.</p>
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<p><em>Effective Counsel</em> is a standard imposed by the Court.  There are significant hurdles to proving ineffective counsel, and frankly if the evidence is overwhelming, not likely to be a factor no matter what.  This is because the justice system would stop functioning if every guilty defendent could claim ineffective counsel and obtain a new trial or have a conviction overturned.</p>
<p>The standard is whether or not the attorney's conduct was <em>unreasonable</em> and thus <em>ineffective</em>.  <em>Conflict Free</em> is not a standard here.  There are Bar Association rules that prevent conflicts of interest (for example, not representing co-defendants).  The assignation of a public defender is not a per se conflict, as you seem to imply.  The public defender is tasked with representing the client to the best of their ability; I am unclear where you see the conflict.  There is no conflict with Contract Law, this is providing a defendant with an attorney.  The defendant is under no compulsion to use said attorney, although it is likely that the Court would still appoint one even if it were not desired by the defendant.  There is no contract here: the defendant provides nothing to such a contract, so there is no exchange of consideration. The attorney is bound by the professional standards of the profession.</p>
<p>If the defendant believes that there is some sort of conflict (the assigned attorney had a previous relationship with the defendant for example) they can petition the court for a replacement, who has final say in the decision.  The belief that an assigned attorney represents an inherent conflict would not be considered a valid argument by the court.  Defendants often seek to change their public defender for less-than-valid reasons and are routinely denied this avenue by the court.</p>
