Our New York Practice
The Blanch Law Firms New York criminal lawyers are some of the most highly sought after attorneys in the country. Catering to criminal defendants with complex and high profile criminal matters, our New York criminal law practice handles all criminal matters including government investigations and both state and federal appeals.
Why Do Clients Choose The Blanch Law Firm?
With over 50 years of combined experience, The Blanch Law Firm is the place to turn when you or a loved one is accused of a crime.
Former Prosecutors
Our attorneys are former New York prosecutors. This means that they have insight into how cases are formed against defendants and therefore, can offer our clients the strongest defense.
As Seen On TV
When major media outlets need accurate legal insight on criminal cases they turn to The Blanch Law Firm. Our managing partner, Ryan Blanch, has appeared as a criminal law commentator on FOX News Live and has been featured in the New York Times, New York Post, and The Wall Street Journal.
The Right to “Effective Assistance of Counsel”
The United States Constitution, specifically the 6th Amendment, guarantees every defendant charged with criminal conduct “the right to the effective assistance of counsel.”
Throughout the history of the state and federal judiciary, the definition of the “right to effective assistance of counsel” has been shaped and molded. One instance, in particular, was by the ruling in the case of Curcio v. the United States.
United States v. Curcio, 680 F.2d 881 (2d Cir. 1982):
In Curcio, the Court found that a defendant’s right to the effective assistance of counsel included “conflict–free counsel.”
What is a “Conflict-Free Counsel?”
“Conflict-free counsel” means counsel whose sole loyalty is to the best interests of the defendant. In order to ensure this is the case, following the guidance of the Court from the Curcio decision, a number of courts throughout the country have conducted Curcio hearings.
What is a “Curcio Hearing?”
When most people think of Curcio hearing they think of the representation of two defendants. Curcio hearings describe a scenario where the United States Attorney’s Office has moved to have defense counsel disqualified because their representation of a particular defendant is conflicted.
How Does a Curcio Hearing Start?
A Curcio hearing usually begins with a call from the U.S. Attorney’s Office, or “the government.” During this call, the government would advise a defense attorney of the reasons why the U.S. Attorney’s Office believes that defense counsel is conflicted and cannot effectively represent the individual defendant.
How is This Case Used in Practice?
What we’ve seen from a practical standpoint is that members of the United States Attorney’s Office contact our firm in order to advise us that we may have a conflict in a particular case. This call is not because it is in a factual conflict – or a real conflict – it is more so to have us removed from aggressively and effectively representing our client.
What is a “Conflict Check” in Criminal Defense?
As a general practice, most law firms conduct was called “conflict checks” prior to engaging in the representation of a defendant in a criminal matter. The initial “conflict check” is conducted by the firm upon the inception of a new client.
That way, when the call comes from the U.S. Attorney’s Office claiming that there is a conflict, defense counsel can confidently take the position that there is no conflict.
Does the Defense Attorney Have to Do Anything Else?
The attorney would then:
- contact the client; and
- advise the client of the allegations being made by the US attorney’s office; and
- advise the client that they can seek the advice of separate counsel regarding the continued representation; or
- advise the client to await a Curcio hearing.
At this point, the judge will assign an attorney to meet with the client solely for the purpose of discussing the potential conflict and its implications.
What Happens During a Curcio Hearing?
During a Curcio hearing, the judge assigned to the case will also ask the defendant direct questions related to the representation including:
- who is paying for the representation;
- if the client was informed of the potential conflict;
- if the client consulted separate counsel regarding the potential conflict; and
- if the client ultimately understands that by waiving a conflict, they waive any potential damage that may result from it – if it turns out to in fact be a conflict.
What is An Example of a Conflict?
For example, an attorney is representing a cooperating witness on a closely related matter. The current case is set for trial. The cooperator will testify. In that case, the attorney has to make a decision on how he or she will in fact divide the loyalty.
The reason why the attorney would have to make that decision if they were allowed to maintain representation on a case would be because there is an ongoing mandate of loyalty to past clients regarding matters of representation. That ongoing loyalty extends to co–defendants who proceeded to trial with the particular client and presented a joint defense.
So, in this example, if defense counsel was allowed to proceed, they will have a decision to make on whether to use information that was gleaned from the prior representation about the cooperator’s character history and criminal conduct for cross–examination purposes.
This is why, in this particular example, most judges would find that this conflict is not waivable. The judge would then remove counsel from the case and either (1) assign the defendant an attorney or (2) allow the defendant an opportunity to retain a different attorney.
Why Does a Judge Ask Who is Paying for the Representation?
Additional conflicts may arise when counsel is paid by a third party for representation if that party is in some way affiliated with the alleged criminal conduct, also known as an “unindicted co-conspirator.”
Then, the concern becomes whether counsel has made it clear to the third–party payer that, despite the fact that they are in fact paying for the representation, the payer has no control or say in matters of defense. Nor does the third-party payer have any particular right to information related to the case.
Have You Ever Had Any Conflicts Involving Third-Party Payers?
We’ve handled a number of cases with third-party payers. In order to cover that issue, – from the outset – it’s included in our retainer agreements and it’s made clear to third–party payers that our client is the named defendant and that, while the third–party payer may be a family member or loved one, our loyalty is to our client.
Although it may be difficult for the individual third-party payer to understand, there may come points in time when the information will not be made available to the third-party payer.
Despite making it clear at the outset, there have been many instances where we had to reiterate these points during various points throughout the representation of the client.
What Happens When a Client Asks You to Withhold Information From Their Family?
Sometimes our clients will give us information regarding their particular conduct that they do not wish to share with their family. In this case, it is counsel’s duty to act in the best interests of the client and prevent the information from being shared with the family as another propagation.
What Happens If You Inadvertently Share Confidential Information?
There are incidences where practitioners may inadvertently share information with law enforcement officers’, prosecutors, and government officials during friendly conversations that they should not particularly share and those practitioners.
This may inadvertently create conflicts that can be very damaging not only to the defendant but to their own professional license and reputation as an attorney.
Sometimes practitioners lose sight of the fact that the constitutional right to counsel requires an undivided loyalty.
What Do You Mean by “Undivided Loyalty?”
This means that if it’s not in my client’s best interest, it should not be done. For example, speaking negatively about a client to a government official or a prosecutor or sharing off–the–record information regarding a client that generally should not be shared with the government official or a law enforcement officer.
What Types of Penalties May an Attorney Face for Those Actions?
That type of conversation not only harms the client but it puts the attorney at risk of being placed before the Ethics Committee of his state bar. Appearing before the Ethics Committee could result in a suspension or revocation of the attorney’s license and their ability to practice law.
As a practical matter, is important to mention the fact that although counsel is required to have undivided loyalty to the defendant, what counsel is not permitted to do is suborn perjury.
What Does it Mean to “Suborn Perjury?”
If a client tells an attorney that they are going to lie under oath, the attorney may not be a party to or participate in, the lie. Counsel also may not assist a client in advancing or perpetrating a fraud; be it on a court or opposing counsel.
What is a Common Complaint from Defendants?
Commonly you hear a lot of defendants complain that their attorneys did not tell them what to say in preparation for a hearing or trial testimony. That conduct is prohibited.
If defense counsel was not present during the commission of the alleged offense or offenses it is obvious perjury for counsel to tell the defendant what to say. This point was worth mentioning because it is something so commonly heard from defendants who find themselves facing criminal charges – asking a defense attorney what should they say.
What is the Takeaway from Curcio?
In some, when considering Curcio, it is a clear statement of a right for a defendant to have effective assistance of counsel, which includes conflict-free counsel; some conflicts that are deemed waivable, and some conflicts that are not.
What are the Best Practices?
It is always a best practice, if there is even the potential for conflict, to have the discussion with the client at the outset of the representation.
An attorney should explain to the client:
- how/why the conflict has arisen;
- how the decision to proceed with representation is the clients alone;
In instances where we’ve had to address this issue, we also memorialize the discussion with the client in writing and give the client an opportunity to sign a document – which also explains to the client that this waiver is revocable at any time at the client’s request.
Claim Your Risk-Free Consultation Now
We offer risk-free consultations with an experienced criminal attorney who can evaluate your case and help you understand your legal options.
To schedule a risk-free consultation, call the number at the top of your screen or call (212)-736-3900, and someone from our staff will contact you as soon as possible.
