Commonwealth v. Hodge (1982)

If a defendant establishes an actual conflict of interest under art. 12, "he is entitled to a new trial without a further showing; he need not demonstrate that the conflict adversely affected his lawyer's performance or resulted in actual prejudice." Mosher, 16 supra. See Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).9 No further showing is required because "the effect of the conflict on the attorney's representation of the defendant is likely to be pervasive and unpr…

We reiterate the cardinal principle that “[a] defendant is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others.” Commonwealth v. Hodge, 386 Mass. 165, 167 (1982), quoting Commonwealth v. Michel, 381 Mass. 447, 453 (1980).

Commonwealth v. Hodge, 386 Mass. 165, 168 (1982).

See Commonwealth v. Cobb, 379 Mass. 456, 459 (1980) (conflict found where defense attorney represented prosecution witness in unrelated matters before, during, and after the defendant’s trial and conviction); Commonwealth v. Hodge, 386 Mass. 165, 165 (1982) (defendant denied effective assistance of counsel when his attorney’s partner represented a prosecution witness in an unrelated civil matter).

"Given the primacy of counsel towards the realization of fair proceedings and a fair trial in our adversarial system, the constitutional guarantee entitles an accused person 'to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others' and other causes." Dew, 492 Mass. at 263, quoting Commonwealth v. Hodge, 386 Mass. 165, 167 (1982).

See Commonwealth v. Dew, 492 Mass. 254, 261 n.17 (2023), quoting Commonwealth v. Hodge, 386 Mass. 165, 169 (1982) ("We have often noted that art. 12 provides 'greater safeguards' than those provided by the Sixth Amendment").

Commonwealth v. Hodge, 386 Mass. 165, 167 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982) (“having established a genuine conflict of interest, [the defendant] was required to prove neither actual prejudice nor adverse effect on his trial counsel’s performance to entitle him to a new trial under art. 12”).

See Commonwealth v. Martinez, supra at 389-391 (defense counsel was “potentially inhibited” in his cross-examination of the client-witness and improperly disclosed privileged information); Commonwealth v. Hodge, supra at 170 (“counsel’s enthusiasm for [attacking the witness’s credibility] might naturally be diminished by counsel’s financial interest in maintaining a good relationship with the client-witness”).

Cf. Commonwealth v. Hodge, 386 Mass. 165, 170 (1982).

Id., citing Commonwealth v. Soffen, 377 Mass. 433, 437 (1979); Commonwealth v. Hodge, 386 Mass. 165, 169-70 (1982); Commonwealth v. Shraiar, 397 Mass. at 20 .

In the instant case attorney Markese’s relationship as counsel for [prosecution witness] Moffett and his knowledge of his client’s *384 case must be imputed to attorney Kielian, who represented the defendant.” See also, e.g., Ross v. Heyne, 638 F.2d 979, 983 (7th Cir.1980) (stating that the situation in which one attorney represented the defendant, while his law partner represented codefendants who testified for the prosecution, was sufficiently similar “to the typical multi…

Once a genuine conflict is shown, the defendant is not required under art. 12 to shoulder the additional burden of proving actual prejudice or an adverse effect on his counsel’s performance. 3 Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).

See, e.g., Commonwealth v. Geraway, 364 Mass. 168, 172 (1973); Commonwealth v. Michel, 381 Mass. 447, 453 (1980); Commonwealth v. Hodge, 386 Mass. at 167 (multi-representation before, during, and after the defendant’s trial).

Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).

Cf. Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982). 6 We see no reason to reach a different conclusion today.

Dew, supra, quoting Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

A criminal defendant's right to the effective assistance of counsel under art. 12 is a right to "the untrammeled and unimpaired assistance of counsel free of any conflict of interest." Commonwealth v. Hodge, 386 Mass. 165, 167 (1982), quoting Commonwealth v. Michel, 381 Mass. 447, 453 (1980).

See, e.g., Commonwealth v. Means, 454 Mass. 81, 89-97 (2009) (strict protocols apply before defendant can be found to have waived or forfeited his right to counsel); Commonwealth v. Hodge, 386 Mass. 165,169-170 (1982) (where counsel has genuine conflict of interest, no prejudice required to warrant new trial).

See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986); Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).

See Commonwealth v. Fuller, 394 Mass. 251 , 256 n.3 (1985); Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982) (because art. 12 does not require defendant to prove actual prejudice once he has shown that counsel was burdened by actual conflict of interest, it provides greater safeguards than Sixth Amendment).

Under the Sixth and Fourteenth Amendments to the Constitution of the United States and art. 12 of the Massachusetts Declaration of Rights, criminal defendants are “entitled to the . . . assistance of counsel free of any conflict of interest and unrestrained by commitments to others.” Commonwealth v. Hodge, 386 Mass. 165, 167 (1982), quoting Commonwealth v. Michel, 381 Mass. 447, 453 (1980).

As we stated in Commonwealth v. Hodge, 386 Mass. 165, 169 (1982), in discussing the differences between the Sixth Amendment and the Massachusetts Declaration of Rights, the “Declaration of Rights can . . . provide greater safeguards than the Bill of Rights of the United States Constitution.” In deciding whether to interpret art. 12 more expansively than the Fifth Amendment, we look to the text, history, and our prior interpretations of art. 12, as well as the jurisprudence e…

Commonwealth v. Shraiar, 397 Mass. 16 , 20 n.3 (1986); Commonwealth v. Hodge, 386 Mass. 165, 170 (1982) (‘having established a genuine conflict of interest, [the defendant] was required to prove neither actual prejudice nor adverse effect on his trial counsel’s performance to entitle him to a new trial under art. 12’).

Cf. Commonwealth v. Hodge, 434 N.E.2d 1246, 1248 (Mass. 1982).

Thus in Commonwealth v. Hodge, 386 Mass. 165, 169 (1982), a case discussing a defendant’s right to be represented by counsel who is not burdened by divided loyalties caused by a conflict of interest, we stated: “The Massachusetts Declaration of Rights can, and in this case does, provide greater safeguards than the Bill of Rights of the United States Constitution.

Commonwealth v. Shraiar, 397 Mass. 16 , 20 n.3 (1986); Commonwealth v. Hodge, 386 Mass. 165, 170 (1982) (“having established a genuine conflict of interest, [the defendant] was required to prove neither actual prejudice nor adverse effect on his trial counsel’s performance to entitle him to a new trial under art. 12”).

See Commonwealth v. Griffin, 404 Mass. 372, 376 , 535 N.E.2d 594, 596 (1989) (“A genuine conflict of interest exists when there is joint representation and ‘an attorney cannot use his best efforts to exonerate one defendant for fear of implicating another defendant.’ ”); Commonwealth v. Hodge, 386 Mass. 165, 169 , 434 N.E.2d 1246, 1248 (1982).

So ordered. 1 It has been held that the right to effective assistance of counsel afforded a defendant by art. 12 “provide [s] greater safeguards than the Bill of Rights of the United States Constitution.” Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

We have held that the right to effective assistance of counsel, afforded a defendant by art. 12, “provide [s] greater safeguards than the Bill of Rights of the United States Constitution.” Commonwealth v. *139 Hodge, 386 Mass. 165, 169 (1982).

See Commonwealth v. Soffen, 377 Mass. 433, 437 (1979); Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982); Commonwealth v. Shraiar, 397 Mass. at 20 .

“The Massachusetts Declaration of Rights can . . . provide greater safeguards than the Bill of Rights of the United States Constitution.” Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

Commonwealth v. Hodge, 386 Mass. 165, 167-170 (1982).

Although art. 12 of the Massachusetts Declaration of Rights provides broader protection than do the Sixth and Fourteenth Amendments (Commonwealth v. Hodge, 386 Mass. 165, 169-170 [1982]), we have relieved defendants of the requirement of *394 proving actual prejudice resulting from counsel’s omissions only in cases involving an actual conflict of interest.

Commonwealth v. Hodge, 386 Mass. 165, 167 (1982).

Cf. Commonwealth v. Hodge, 386 Mass. 165, 167-168 (1982).

Commonwealth v. Hodge, 386 Mass. 165, 170 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 167-68 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 167-168 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

See Commonwealth v. Mavredakis, 430 Mass. 848, 858 (2000), citing Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

See Commonwealth v. Hodge, 386 Mass. 165 (1982). “[A] defendant must be able to seek the advice and guidance of his attorney and must be able to rely on the undivided loyalty of his counsel to present the defense case with full force and zealousness.” Commonwealth v. Downey, supra at 551-552 .

See id. at 167-168 .

Compare Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982); Commonwealth v. Martinez, 425 Mass. 382, 392-394 (1997).

See Commonwealth v. Hodge, 386 Mass. 165, 169 (1982).

See Commonwealth v. Hodge, 386 Mass. 165 (1982) (genuine conflict of interest existed when law partner of defendant’s trial attorney concurrently represented a prosecution witness in an unrelated civil matter); Commonwealth v. Geraway, 364 Mass. 168 (1973) (where associates of defendant’s trial attorney represented prosecution witnesses in several unrelated matters, genuine conflict of interest arose).

See Commonwealth v. Hodge, 386 Mass. 165, 170 (1982).

See Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982); Commonwealth v. Soffen, 377 Mass. 433, 437-438 (1979).

See Commonwealth v. Hodge, 386 Mass. 165, 167-168 (1982); Commonwealth v. A Juvenile (No. 2), 384 Mass. 390, 392-394 (1981); Commonwealth v. Tabor, 376 Mass. 811, 819-820 (1978); Commonwealth v. Johnson, 365 Mass. 534, 547-548 (1974).