About a month ago, the Illinois Court of Appeals (Fourth District) issued an opinion in a peculiar case in which a convicted defendant argued he had received ineffective assistance of counsel, among other reasons, because his attorney operated under a conflict of interest.
The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.
How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.
Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.
Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.
I think the lower court should have prevented him from representing the defendants jointly.
The case is called In re Austin and the opinion is available here.