Betty Lou Beets v. Wayne Scott, Director Texas Department of Criminal Justice, Institutional Division

65 F.3d 1258, 1995 WL 561468

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 22, 1995
• Docket: 91-4606
• Status: Published

Opinions

EDITH H. JONES, Circuit Judge:

The issue that provoked en banc rehearing of this capital murder case is whether a habeas corpus petitioner was deprived of her Sixth Amendment right to effective assistance of counsel because her attorney committed arguable ethical violations when he obtained a contract for media rights to her story and failed to withdraw and testify as a defense witness. More precisely, the court has divided over the issue whether these facts should be measured by the Strwkland standard for an attorney’s deficient performance ¹ or by the Cuyler standard adopted for the special case of attorney conflicts in cases of multiple client representation.² On reconsideration, we approve Judge Higginbotham’s analysis in a concurrence to the panel opinion that Strickland more appropriately gauges an attorney’s conflict of interest that springs not from multiple client representation but from a conflict between the attorney’s personal interest and that of his client. Judged under Strickland, the attorney’s actions in this case were neither deficient nor prejudicial. Alternatively, however, even if the Cuyler standard applies, we find that only a potential and not an actual conflict arose between Beets and her lawyer. On either ground, the writ must be denied.³

Because our analysis of the Sixth Amendment issue depends upon a thorough recapitulation of the history of the case, the background is described with more than usual detail.

I. BACKGROUND

A. Summary of Proceedings

On October 11, 1985, petitioner Betty Lou Beets (Beets) was convicted of the capital murder of her fifth husband, Jimmy Don Beets (Jimmy Don). She was sentenced to death. Beets appealed unsuccessfully to the Texas Court of Criminal Appeals, see Beets v. State, 767 S.W.2d 711 (Tex.Crim.App.1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989). Her request for a state writ of habeas corpus having been denied, Beets sought similar relief in federal court. 28 U.S.C. § 2254. The district court granted the writ on finding that Beets’s defense counsel at trial was a material witness who should have resigned to testify rather than represent her. On appeal, this court rejected Beets’s claims that her attorney labored under an actual conflict of interest stemming from either his status as a witness or the media rights contract. The panel majority applied the Cuyler standard to the case and, while Judge Higginbotham agreed with the conclusion of no actual conflict, he maintained in a separate opinion that Strickland should be applied instead.

B. The Murder Case

Beets’s fifth husband, Jimmy Don, disappeared on August 6, 1983. See Beets v. State, 767 S.W.2d 711 (Tex.Crim.App.1988) (lengthy recitation of the evidence). His fishing boat was found drifting on Lake Athens, Texas, suggesting that he had drowned.⁴ More than a year later, a house that was Jimmy Don’s separate property before his death was destroyed by fire. When the insurer, suspecting arson, refused Beets’s claim for the loss, Beets sought the counsel of E. Ray Andrews, an attorney who had represented Beets since 1981 or ’82. During their discussions, it was decided that Andrews would pursue any of Jimmy Don’s insurance or pension benefits to which Beets might be entitled.

Beets and Andrews entered into a contingent fee arrangement covering these matters. Andrews preliminarily determined that certain benefits existed and then sought the assistance of two attorneys more experienced in collecting such benefits. Andrews arranged a meeting in his office with Beets and Randell Roberts, one of the other attorneys. Roberts agreed to associate his firm in the matter. Roberts’s brother, attorney Bruce Roberts, eventually took over responsibility for Beets’s claims. Through his efforts, Jimmy Don’s former employer, the City of Dallas Fire Department, agreed to provide benefits to Beets.

Before Beets received the first check from the Fire Department, she was arrested on June 8, 1985, and was charged with the capital murder of Jimmy Don. Beets was charged with shooting and killing her husband and, with the assistance of her son, Robbie Branson, burying him in a sleeping bag under a planter in her front yard.⁵ The body of Beets’s fourth husband, Doyle Wayne Barker, was also found in a sleeping bag buried in the back yard underneath a patio upon which a storage shed had been erected. Beets had also shot another former husband, Bill Lane, although he survived.

Andrews, described by the federal district judge as a “competent and tenacious criminal defense lawyer,” agreed to represent Beets on the capital murder charge. The case generated significant local and national media interest. On October 8, just after Beets’s trial commenced, she signed a contract transferring all literary and media rights in her case to Andrews’s son. Andrews testified at the federal habeas hearing that this contract was signed after negotiations fell through to obtain his fee from Beets’s children. The media rights contract later apparently became the subject of a State Bar grievance proceeding, but Andrews was not disciplined for it.

The trial judge did not become aware of the media rights contract during trial, although he learned of it three months later during a hearing on Beets’s motion to appoint counsel for appeal when the prosecutor asked Beets if she had signed over the book rights to her case to Andrews’s son. The judge did not inquire whether Beets was willing to waive her Sixth Amendment right to conflict-free counsel.

Beets was convicted of murder for remuneration and the promise of remuneration on the theory that she killed her husband in order to obtain his insurance and pension benefits and his estate. See Tex.Penal Code Ann. § 19.03(a)(3) (Vernon Supp.1991). The Texas Court of Criminal Appeals later held that “a person commits a murder for remuneration ... where the actor kills a victim in order to receive a benefit or financial settlement paid upon the death of the victim, such as proceeds of insurance and retirement benefits as in the present case.” Beets v. State, 767 S.W.2d at 737. In other words, the state was required to show that Beets had the specific intent to receive remuneration in the form of insurance or pension benefits or other property upon the death of Jimmy Don.

Andrews defended Beets primarily on the ground that her son Robbie actually murdered Jimmy Don and, second, by disputing that the murder was for remuneration. Andrews, his co-counsel Hargrave, the Texas Court of Criminal Appeals and the federal district court all concur that this was the order of Andrews’s strategy. It was a good strategy, as the federal district judge explained:

The court has carefully reviewed the record. It is apparent that the defense counsel, E. Ray Andrews, fought for his client to the full extent of his ability and energy. This case was vigorously prosecuted and vigorously defended before a careful and learned trial judge. Andrews put forth the only evidence available to him that had evidence that a jury could conclude had scientific corroboration — the results of the pathology report which raised the issue of an altercation and head injury unrelated to the gun shot. Such evidence, if believed, would be consistent with the defense position that Jimmy Don Beets was killed by petitioner’s son, Robert F. Branson, II.

Andrews strenuously cross-examined Robbie Branson, one of Beets’s children, who was at the time of the offense a teenager living with her and Jimmy Don. Several times, he had quarrelled heatedly with his stepfather, and he had damaged some of Jimmy Don’s property and taken money from him. Robbie had a criminal record for burglary and was accused of trying to pass stolen checks. Although Robbie denied killing his stepfather, Beets testified that Robbie and Jimmy Don fought on the night of the murder and, when she was in another room, she heard a shot fired in the bedroom. She found Jimmy Don dead on the floor. Beets said she helped Robbie dispose of the body. Together, they planned the boating accident ruse, and Beets went off to shop in Dallas with her daughter the next day.

Beets denied being the murderer. She said she loved Jimmy Don and he had treated her well.

Supporting the theory that Robbie committed the murder, the forensic pathologist, Dr. Petty, testified that Jimmy Don’s fractured cheek bone, otherwise unexplainable by his head wound from the pistol, could have been inflicted in a fight with another man.

Critical to the success of the non-trigger-person defense was Beets’s motion in limine to prevent the state from introducing evidence of Barker’s body, which had been dug up at the same time as Jimmy Don’s. The state trial judge initially granted this motion but changed his mind near the end of trial. This change made it possible for Beets’s daughter Shirley Stegner to testify for the State that Beets had killed Barker in 1981 and obtained Shirley’s help in burying him in the back yard.⁶ Shirley was vulnerable as a witness because of her own criminal exposure in Barker’s murder and her unsavory personal background. Andrews made the most of her impeachment. Nevertheless, the evidence of Barker’s violent death was devastating to the defense, as Andrews and Hargrave both acknowledged at the federal habeas hearing.

Shirley Stegner’s testimony about her mother’s motive for killing Barker also enhanced the state’s proof of motive in Jimmy Don’s case. Shirley testified that her mother told her that

“she was going to kill Doyle Wayne Barker” because “she couldn’t put up with any more of him beating her and that she didn’t want him around anymore.”

Her mother also told her that

“the trailer [house] was in his name and she was just a co-signer on it and that if they were to get a divorce, that he would end up with the trailer [house].”

Beets v. State, 767 S.W.2d at 718.

The State adduced other evidence of Beets’s attempts to enrich herself at the expense of Jimmy Don’s life or his estate. Less than six months before he died, Betty Lou applied to J.C. Penney for a $10,000 life insurance policy in Jimmy Don’s name, which she forged on the application. She directed all further correspondence on the policy to a daughter’s home address. Coincidentally, a relative of her husband was then employed at J.C. Penney’s and noticed some discrepancies on the paperwork, which she brought to Jimmy Don’s attention. He promptly cancelled the policy.

After Jimmy Don’s disappearance, Beets forged his signature on the title certificate of the boat, which had been his separate property, and sold it for $3,250. She also tried to sell a house that had been his separate property. As has been related, the house mysteriously burned down, so she sought out Andrews to collect the fire insurance benefits.

Also important to the State was the testimony of Denny Burris, a chaplain with the City of Dallas Fire Department. Burris met with Beets several times during the first few weeks after Jimmy Don was reported missing:

Burris testified that [Beets] made inquiry of him whether she was covered by any insurance policies that [Jimmy Don] might have had with the City of Dallas, as well as inquiring whether she would be entitled to receive any pension benefits that [Jimmy Don] might have accumulated. [Beets] did not profess to Burris that she had any specific knowledge of either insurance coverage on [Jimmy Don]’s life or any pension benefits [Jimmy Don] might have accumulated. Burris told her that he did not know but would cheek into the matter and report back to her. Burris did check and learned that [Jimmy Don]’s life was insured with the total amount of insurance being approximately $110,000. He also learned that [Beets] would be entitled to receive approximately $1,200 each month from [Jimmy Don]’s pension benefits. Burris advised [Beets] of his findings, and also told her that according to the City Attorney of Dallas that because [Jimmy Don]’s body had not been recovered there would be a seven year waiting period before any payment of insurance proceeds could occur.

Beets v. State, 767 S.W.2d at 716-17. Burris’s testimony implied that right after Jimmy Don’s disappearance, the “bereaved” wife was inquiring about his death benefits. This testimony could be taken by the jury to mean that she was already greedy or truly ignorant about them at that time. In any event, Beets had to assume from Burris’s information that she must wait several years before collecting them.

Andrews’s strategy to negate the specific intent element of the capital crime was to introduce Beets’s testimony that she was unaware of any potential insurance or pension benefits available to her at the time she approached Andrews, eighteen months after Jimmy Don’s “disappearance,” for assistance in pursuing her fire damage claim. Beets testified that Andrews suggested that she should pursue Jimmy Don’s life insurance or pension benefits but that she never felt entitled to them.

Bruce Roberts testified as part of the strategy that Beets seemed interested in no other insurance claims than that pertaining to the burned house. Beets brought Roberts what looked like part of an insurance policy, and she mentioned pension benefits, but she gave Roberts no other information helpful to pursuing the claims. To Roberts, Beets appeared not to know anything about the amount or nature of any death benefits to which she might be entitled. Roberts confirmed that she never received any money on her claims.

In closing argument, Andrews informed the jury that it was his idea to pursue Jimmy Don’s benefits for Beets. His statement was not objected to.

The jury disbelieved Beets’s non-trigger-person defense and her denial of a pecuniary motive and so convicted her of capital murder. The state court of criminal appeals affirmed.

C. Posi>-Conviction Proceedings

In the state habeas corpus proceedings, Beets, represented by new counsel, filed a voluminous petition but raised her Sixth Amendment conflict-of-interest claim only as to Andrews’s media rights contract — and without mentioning Andrews’s status as a witness — as claim number 34(h) on page 70 of her pleading. Andrews filed an affidavit that the media rights contract did not adversely affect his representation of Beets. The trial court, agreeing with Andrews, stated:

(4) As to Petitioner’s ineffective counsel claim, the Court finds from personal recollection of the trial that this case was hotly contested by Petitioner’s trial counsel and that Petitioner was vigorously defended at every stage of the trial proceedings by her counsel. Petitioner’s grant of “book rights” to the son of her counsel had no effect on the strategy of defense counsel. Counsel for Petitioner made an adequate factual investigation of the case.

The conduct of Petitioner’s counsel at trial date did not so undermine the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The conduct of petitioner’s counsel during trial was not deficient and he presented all evidence then existing to support the defense of his client.

The court’s denial of relief was affirmed by the Texas Court of Criminal Appeals.

Beets’s federal habeas petition alleged, among many other issues, that Andrews’s failure to withdraw and offer direct testimony that Beets was ignorant of potential death benefits constituted an actual conflict of interest with his client. Beets further alleged that the media rights contract gave rise to a separate conflict of interest.

The district court, after holding an eviden-tiary hearing,⁷ decided that Andrews’s failure to withdraw and testify resulted in an actual conflict of interest that adversely affected his representation of Beets. Granting the writ of habeas corpus on this basis, the court found:

Andrews obviously should have known of his dual status as witness and advocate prior to trial. Andrews’ dual status should have also been apparent to both the judge and district attorney as the trial unfolded. The Court is persuaded that the conflict never occurred to any of the participants. The testimony that Andrews could have provided as an independent witness related to an essential element of the State’s charge of murder for remuneration.

The court also concluded that the media rights contract, factually intertwined with the failure to withdraw conflict, constituted a separate conflict of interest, but he expressly found that it did not adversely affect Andrews’s performance. In reaching his decision on the Sixth Amendment issue, the district court applied the test set out in Cuyler v. Sullivan, supra n. 2.

II. DISCUSSION

Risen from obscurity in her state habeas petition to the dispositive issue in federal district court are Beets’s complaints that her lawyer’s ethical violations, breaches of the duty of loyalty to his client, violated the Sixth Amendment. No doubt Beets’s constitutional right to effective counsel demands diligent protection. The primary question before us, however, is the applicable standard of protection.

The Supreme Court has determined that in most Sixth Amendment ineffectiveness cases, the defendant must show that counsel’s errors fell below an objective standard of reasonableness and prejudiced his case, which ordinarily means establishing a reasonable probability that counsel’s errors changed the result of the proceeding. Strickland, 466 U.S. at 686, 694, 104 S.Ct. at 2064, 2067. In some cases, however, prejudice is presumed if the defendant shows that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718. The precise nature of Cuyler*s “actual conflict” and “adverse effect” elements is rather vague, but the Cuyler test sets a lower threshold for reversal of a criminal conviction than does Strickland. The Supreme Court explained the reason for this distinction as follows:

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice [than a case in which the defendant effectively had no counsel]. In Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct., at 1716-1719, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.R.Crim.Proc. 44(e), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, 100 S.Ct., at 1719, 1718 (footnote omitted).

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

The position adopted by this court en banc may be easily summarized. Strickland offers a superior framework for addressing attorney conflicts outside the multiple or serial client context.⁸ First, Cuyler, like all the other Supreme Court cases that have discussed a lawyer’s conflict of interest, solely concerned the representation of multiple clients. The Supreme Court has not expanded Cuyler’s presumed prejudice standard beyond cases involving multiple representation. Although lower courts have generally extended Cuyler to “duty of loyalty” cases, their decisions have not grappled with the difficulties inherent in that position, and their reasoning has been inconsistent. See note 10, infra. Second, the demands and reasoning of legal ethics militate against treating multiple representation cases like those in which the lawyer’s self-interest is pitted against the duty of loyalty to his client.⁹ Finally, applying Cuyler in cases arising from a lawyer’s conflict of interest between himself and his client ultimately undermines the uniformity and simplicity of Strickland. Each of these propositions will be discussed.

A. Cuyler and Related Supreme Court Cases

Although the federal circuit courts have unblinkingly applied Cuyler’s “actual conflict” and “adverse effect” standards to all kinds of alleged attorney ethical conflicts,¹⁰ a careful reading of the Supreme Court eases belies this expansiveness. Neither Cuyler nor its progeny strayed beyond the ethical problems of multiple representation. One cannot read Cuyler to analyze conflicts of interest in a context broader than that of multiple client representation. The case came to the Supreme Court raising two issues left open by a previous multiple representation case: whether a trial judge must sua sponte inquire into the propriety of multiple representation, and “whether the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel.” Cuyler, 446 U.S. at 343, 100 S.Ct. at 1716. In stating its Sixth Amendment standard that has been quoted above, the Court said:

Glasser established that unconstitutional multiple representation is never harmless error. Once the Court concluded that Glasser’s lawyer had an actual conflict of interest, it refused “to indulge in nice calculations as to the amount of prejudice” attributable to the conflict. The conflict itself demonstrated a denial of the “right to have the effective assistance of counsel.” Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719 (citations and footnote omitted). While some sentences in this paragraph do not refer explicitly to multiple representation, they must be read in the context of the first and last sentences of the paragraph, which do. In particular, the last sentence, which actually states the standard, requires that counsel have “actively represented ” conflicting interests, not that he have “actively been in a conflict situation.” Further, the two cases cited as authority in this section, Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), were multiple representation eases, and the footnote at the end of the paragraph cites a law review article about multiple representation: Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J.Crim.L. & Criminology 226, 231-32 (1977).

Justice Marshall’s separate opinion in Cuyler, written to challenge the adverse effect prong of the test, endeavors to define “conflict of interests.” 446 U.S. at 355 n. 3, 100 S.Ct. at 1722 n. 3 (Marshall, J., concurring in part and dissenting in part). In each of the ethics codes to which he refers, Justice Marshall cites only the canon or rule dealing with multiple client representation.

Four later Supreme Court cases have clarified the scope of Cuyler. In the first, Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), three employees of an adult movie theater were prosecuted for distributing obscenity. The theater paid for their representation and also agreed to pay their fines. When the theater broke its promise and did not pay, the employees’ probation was revoked and the employees were incarcerated. The Supreme Court granted certiorari to examine whether a state could imprison a probationer for not paying a fine, but after viewing the record, the Court remanded the case for consideration of a possible conflict of interest.¹¹ Id. at 273-74, 101 S.Ct. at 1104.

In Wood, the Court was troubled by the lawyer’s apparent decision to undertake a strategy that benefitted the theater at the expense of the employees. The opinion noted that “their [the employees’] counsel has acted as the agent of the employer,” id. at 267, 101 S.Ct. at 1101; charged “that the employer and petitioners’ attorney were seeking to create a test case,” id.; and concluded its conflict discussion by noting that “if petitioners’ counsel was serving the employer’s interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court....” Id. at 268, 101 S.Ct. at 1102. While the opinion does not say whether the lawyer formally represented the theater or not, the lawyer was at least in the functional equivalent of a joint representation. “[Petitioners were represented by their employer’s lawyer, who may not have pursued their interests single-mind-edly.” Id. at 271-72, 101 S.Ct. at 1103. Both the theater and the employees expected him to advance their interests, yet to serve one might require him to fail the others, while doing nothing could harm both.

The second case, Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) placed an outer bound on Cuyler. Whiteside’s counsel conditioned his representation on Whiteside’s not committing perjury. Id. at 161, 106 S.Ct. at 991. The Court held that a “conflict” between a lawyer’s ethical obligation not to aid perjury and a client’s desire to commit perjury “is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan.” Id. at 176, 106 S.Ct. at 999. It noted that “[i]f a ‘conflict’ between a chent’s proposal and counsel’s ethical obligation gives rise to a presumption that counsel’s assistance was prejudicially ineffective, every guilty criminal’s conviction would be suspect if the defendant had sought to obtain an acquittal by illegal means.” Id.

The third case, Strickland v. Washington, supra, addressed Cuyler while defining how much prejudice a defendant must show in the usual ineffectiveness case. The Court stated that Cuyler “is not quite” a “per se rule of prejudice,” and that “[prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. at 1719, 1718). The language Strickland excerpted from Cuyler comes directly from the passage reproduced earlier, in which the Court discussed a lawyer who “actively represented” multiple parties.

Contrary to Beets’s argument, Strickland did not say that prejudice is presumed whenever counsel breaches the duty of loyalty. See Beets, 986 F.2d at 1493 (Higginbotham, J., concurring). Strickland mentioned the duty of loyalty to underscore the general significance of conflicts of interest. 466 U.S. at 692, 104 S.Ct. at 2067. To define when that problem becomes serious enough to attain constitutional import, or, put differently, when it triggers the “not quite per se rule of prejudice,” the Court quoted a section of Cuyler discussing multiple representations. Id.

The last case in this series is Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), in which the Court applied the Cuyler analysis to determine whether a habeas corpus petitioner’s case had been adversely affected by an “actual conflict” arising out of his attorney’s having participated with a law partner in the defense of a co-defendant. Both men had been charged with capital murder, and each defendant contended that he had less responsibility and was less culpable than his co-defendant. Nevertheless, the Court found no actual conflict and no adverse effect of the assumed multiple representation on Burger’s defense. Burger reinforces the notion that not every potential conflict, even in multiple representation cases, is an “actual” one for Sixth Amendment purposes.

In sum, the Supreme Court has not expanded Cuyler to reach the ethical violations alleged in Beets’s case. Cuyler, a multiple representation case, restated a rule developed in multiple representation eases. Nix declined to extend that rule to all conflicts between client and lawyer. Wood simply recognized that some third-party fee arrangements can develop into the functional equivalent of multiple representation. Strickland cited Cuyler1 s language dealing with the impact of multiple representation. Several Justices have acknowledged this apparent limitation of Cuyler. See Illinois v. Washington, 469 U.S. 1181, 105 S.Ct. 941, 83 L.Ed.2d 953 (1984) (White, J., dissenting from denial of certiorari).12 To this day, however, the uncertainty remains.¹³ The dissent shares this uncertainty, arguing on one hand that Cuyler is not limited to multiple or serial representation cases but acknowledging that it should not apply to most breaches of legal ethics.

B. Whether Cuyler Should Apply to Conflicts Between an Attorney’s Personal Interest and his Client’s Interest

The Sixth Amendment assures defendants of legal counsel whose reasonably effective assistance permits a fair trial. Strickland, 466 U.S. 668, 104 S.Ct. 2052 (1984); Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). In the absence of controlling authority, we must decide whether, when a lawyer places his self-interest above that of the client, the resulting conflict deserves Cuyler’s “not quite per se ” rule of prejudice or Strickland’s more deferential standard of attorney competence. Which of these standards better promotes a fair trial?

Those who seek to apply the Cuyler standard will argue that the attorney’s duty of loyalty to the client is of fundamental importance. E.g., Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. Compromise that loyalty, and the attorney has negated the assumption underlying Strickland’s deferential approach to reasonable professional conduct, which is that the attorney has the best interests of the client at heart. In order to satisfy the Sixth Amendment, any breach of the duty of loyalty must meet the severe standard of “not quite per se ” prejudice.

That position has some appeal, but in our view, it oversimplifies legal ethics and would obscure Sixth Amendment doctrine. Not all conflicts of interest that affect the attorney’s “duty of loyalty” have the same consequences, and they are not all suited to Cuyler ’s stringent rule.¹⁴ Even the dissent does not advocate applying the Cuyler rule to all breaches of the duty of loyalty. The dissent contents itself with arguing that a media rights contract and a few other breaches have a “highly particularized and focused source” that justified application of Cuyler:¹⁵

1. The scope of the “duty of loyalty” is ambiguous.

Founding constitutional doctrine on the lawyer’s “duty of loyalty” is an enterprise set in shifting sand. The term “duty of loyalty,” narrowly defined, refers to an attorney’s responsibility to place his client’s interest ahead of his own interest or, in the case of multiple representation, not to sacrifice one client’s interest for the other’s. See, e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.7 cmt. (1992). But even on this level, legal ethics rules generally distinguish between the duty of loyalty as measured against an attorney’s self-interest and cases of multiple representation. More troublesome, the boundaries of the duty of loyalty are elastic; they potentially subsume or overlap a number of other ethical responsibilities to the client.

Taking the narrow sense of the duty of loyalty, the canons and rules of ethics treat separately conflicts arising from the attorney’s self-interest and those involving multiple client representation. See, e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.7:

Conflict of interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless ...

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests unless....¹⁶

The reason for distinguishing multiple representation conflicts from those involving self-interest is clear. When multiple representation exists, the source and consequences of the ethical problem are straightforward: “counsel represents two clients with competing interests and is torn between two duties. Counsel can properly turn in no direction. He must fail one or do nothing and fail both.” Beets v. Collins, 986 F.2d at 1492, (Higginbotham, J., concurring). “An attorney cannot properly serve two masters.” United States v. Locascio, 6 F.3d 924, 933 (2d Cir.1993). Conflicts between a lawyer’s self-interest and his duty of loyalty to the client, however, fall along a wide spectrum of ethical sensitivity from merely potential danger to outright criminal misdeeds. Sources of potential conflict, from among the manifold variations possible, include: matters involving payment of fees and security for fees; doing business with a client; the use of information gained while representing a client; a lawyer’s status as a witness; and a lawyer’s actions when exposed to malpractice claims. Ethical rules typically separate each of these problems, for each type deserves particular consideration. See, e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.8.

Ultimately, the duty of loyalty in its broad sense resonates against the lawyer’s obligation to perform competent, effective work. The ABA Model Professional Rules express this overlap:

The lawyer’s own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1 and 1.5.

ABA Model Rule 1.7 cmt. Rule 1.1 states the lawyer’s duty of competence, Rule 1.5 the duty to charge a reasonable fee. If the lawyer stints on his work or is not sufficiently diligent for a client either because he is not well paid by that client or because of an extrinsic influence, he has potentially breached the duty of loyalty. Where the obligation to a single client is concerned, the duties of loyalty and competence are intertwined.

2. The effects of breaching the duty of loyalty are clearest in multiple representation eases.

Because multiple defendant representation poses a unique, straightforward danger of conflict, the Cuyler rule of “not quite per se ” prejudice makes eminent sense. A defendant whose attorney “actively represented conflicting interests” has had no real lawyer secured to him by the Sixth Amendment. As Justice Powell put it in Cuyler, “[t]he conflict itself demonstrated a denial of the ‘right to have the effective assistance of counsel.’” 446 U.S. at 349, 100 S.Ct. at 1719 (quoting Glasser, 315 U.S. at 76, 62 S.Ct. at 467). Moreover, this type of conflict may be addressed by a prophylactic rule, whereby a court, made aware of multiple representation, can insure early in the criminal proceeding that the client has been informed of the pitfalls of multiple representation and knowingly waived any conflict. See, e.g., Fed. R.Crim.P. 44(c). As Strickland pointed out, “Given ... the ability of trial courts to make early inquiry in situations likely to give rise to conflicts, ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.” 466 U.S. at 692, 104 S.Ct. at 2067.

But only in the multiple representation context is the duty of loyalty so plain. Only then is the risk of harm high enough to employ a near-per se rule of prejudice.¹⁷ While loyalty may be implicated in other judgments a lawyer makes, in no other category of conflicts is the risk of prejudice so certain as to justify an automatic presumption. See Cuyler, 446 U.S. at 349, 100 S.Ct. at 1719. When the duty of loyalty is challenged by an attorney’s self-interest, the range of possible breaches, as previously shown, is virtually limitless. Likewise, their consequences on the quality of representation range from wholly benign to devastating. Compare United States v. Horton, 845 F.2d 1414, 1418-21 (7th Cir.1988) with United States v. Ellison, 798 F.2d 1102, 1106-09 (7th Cir.1986) and Stoia v. United States, 22 F.3d 766, 769-70 (7th Cir.1994). Applying a near-per se rule of prejudice to this spectrum of potential ethical problems is a draconian remedy.

3. Strickland best addresses attorney self-interest conflicts.

In stark contrast to multiple representation situations, there is little meaningful distinction between a lawyer who inadvertently fails to act and one who for selfish reasons decides not to act. The “conflict” between the lawyer’s self-interest and that of his client is not a real conflict in the eyes of the law. Rather than being immobilized by conflicting ethical duties among clients, a lawyer who represents only one client is obliged to advance the client’s best interest despite his own interest or desires. Even though his disloyalty does not leave the client bereft of counsel, it may well impinge on the effectiveness of his representation.

A few illustrations demonstrate the persistent overlap between self-interested duty of loyalty problems and attorney effectiveness:

(1)An attorney represents a client charged with white collar crime. His fee will be paid from the profits of the business. The attorney has an incentive to plea bargain rather than risk the business’s closing if the client is unsuccessfully defended.

(2) An attorney has neglected to file a competency motion. To cover up the mistake, it is alleged, he tardily files an inadequate motion.

(3) An attorney undertakes client representation despite an overabundance of work. He then neglects to interview a potential alibi witness.

(4) An attorney is a potential witness for a client he has represented in the past. Rather than testify, however, he continues to represent the client in the case.

See also cases cited in n. 10, supra. The duty of loyalty and other ethical rules have arguably been tested or breached in each of these cases, but each also raises a question of lawyer competency.

Because the scope of the duty of loyalty with respect to attorney self-interest is inherently vague and overlaps with professional effectiveness, Strickland ought to set the constitutional norm of adequate representation. The Court has already hinted at such a possibility:

Under the Strickland standard, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.

Nix v. Whiteside, 475 U.S. at 166, 106 S.Ct. at 993. Nix invoked Strickland, not Cuyler, as the benchmark for judging ethical violations. In so doing, the Court hesitated “to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state’s proper authority....” Id. A standard that requires a showing of prejudice and affords appropriate latitude to professional judgment best addresses ethical breaches under the Sixth Amendment.

Strickland lists other powerful reasons supporting its more flexible test of constitutional competence. Strickland declined to “exhaustively define obligations of counsel [or] form a checklist for judicial evaluation of attorney performance.” 466 U.S. at 688, 104 S.Ct. at 2065. The Court stated that “[p]re-vailing norms of practice as reflected in American Bar Association standards ... are guides to determining what is reasonable, but they are only guides.” Id. As Strickland astutely warned, “[a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Id. at 689, 104 S.Ct. at 2065. Indeed,

[T]he existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.

Id. at 689, 104 S.Ct. at 2065.

These considerations, which prompted the Court’s reluctance to micromanage standards of professional and ethical behavior, apply with full force to the duty of loyalty with respect to attorney self-interest. The interests of both the defendant and society are served by a standard that, as far as possible, does not straitjacket counsel in a stifling, redundant federal code of professional conduct. Moreover, the purpose of the Sixth Amendment is not primarily to police attorneys’ ethical standards and create a constitutional code of professional conduct; its purpose is to assure a fair trial based on competent representation. Finally, while Strickland does state that counsel owes the client a duty to avoid conflicts of interest (citing Cuyler), this is just one duty listed among others — the duties to advocate the defendant’s cause, to consult with and keep the defendant informed, and to employ skill and knowledge on the defendant’s behalf. The Court emphasizes these as an unexhaustive list of the basic duties of counsel. Id. at 688,104 S.Ct. at 2065. To list these duties is thus the starting point, not the conclusion, of constitutional analysis. We are firmly persuaded that it is most consistent with Strickland to assess the duty of loyalty pitted against a lawyer’s self-interest under the Strickland test.¹⁸

4. Cuyler v. Strickland

If Cuyler’s more rigid rule applies to attorney breaches of loyalty outside the multiple representation context, Strickland’s desirable and necessary uniform standard of constitutional ineffectiveness will be challenged. Recharacterization of ineffectiveness claims to duty of loyalty claims will be tempting because of Cuyler’s lesser standard of prejudice. See Stoia v. United States, 22 F.3d 766, 769-70 (7th Cir.1994); United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir.1987). A blurring of the Strickland standard is highly undesirable. As a result of the uncertain boundary between Cuyler and Strickland, the focus of Sixth Amendment claims would tend to shift mischievously from the overall fairness of the criminal proceedings — the goal of “prejudice” analysis — to slurs on counsel’s integrity — the “conflict” analysis. Confining Cuyler to multiple representation claims poses no similar threats to Strickland. The dissent, of course, purports to avoid unwarranted expansion of Cuyler by confining its scope, apart from multiple representation cases, to instances involving “extraordinary” attorney-client conflicts “stemming from a highly particularized and powerful source.” This open-ended, though hyperbolic, language is bereft of any animating principle and, as such, is unfortunately guaranteed to spawn far more litigation that it resolves.

For all these reasons, we conclude that Strickland governs the issue whether Andrews’s media rights contract and status as a witness resulted in the denial of constitutionally adequate counsel to Beets.

C. Strickland Applied

To prevail under the Strickland standard, Beets must show that her attorney’s performance fell below an objective standard of reasonableness and that it prejudiced the defense, undermining the reliability of the proceeding. Strickland prejudice, as has been noted, considers the overall result of the prosecution. Beets alleged two ethical breaches by Andrews, the taking of a media rights contract in full satisfaction of his fee and his failure to withdraw and testify as a material witness. Although these lapses are alleged to interact, they may conveniently be discussed in turn. It is important to note that although the dissent would not approve the following discussion of Andrews’s competence under Strickland, our colleagues do agree that if Strickland sets the Sixth Amendment standard here, there is no constitutional violation because Beets was not prejudiced by Andrews’s conduct as her counsel.

1. Media rights contract.

This court joins other courts, scholars and organizations of the bar who have uniformly denounced the execution of literary and media rights fee arrangements between attorneys and their clients during the pendency of a representation.¹⁹ The Texas Code of Professional Responsibility stated at the time of this trial:

Prior to the conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client by which he acquires any interest in publication rights with respect to the subject matter of his employment or proposed employment.

Supreme Court of Texas, Code of Professional Responsibility, DR5-104(B) (1982). See also ABA Model Rules of Professional Conduct, Rule 1.8(d). Succinctly, a media rights contract is offensive because it may encourage counsel to misuse the judicial process for the sake of his enrichment and publicity-seeking, and it necessarily trades on the misery of the victim and his family.

Perhaps because of the widely shared professional disapproval of media rights contracts, few cases challenging them have arisen. Although the cases have been judged under various legal standards, hardly any convictions have been reversed for a pernicious influence of such contracts on counsel’s effectiveness.²⁰

So it must be here. Notwithstanding Andrews’s apparent breach of his ethical obligations, this court sits not to discipline counsel but to determine whether Beets was thereby deprived of a fair trial. The state has the duty to punish an attorney for unethical conduct. For reasons not disclosed in the record, the state declined to discipline Andrews for this fee arrangement. While the media rights contract posed a serious potential conflict of interest, Beets failed to show how it hindered Andrews’s presentation of her defense or prejudiced her by rendering the result of her criminal prosecution fundamentally unreliable. Beets has not asserted that Andrews manipulated the case to enhance publicity²¹ or that the contract generally clouded his good judgment.²² Beets has shown no actual influence of the media rights contract on the conduct of her defense. In the state habeas proceedings, Andrews filed an affidavit in which he denied that the media rights contract affected his representation of Beets. The state courts accepted this unrebutted statement. At the federal habeas hearing, Andrews’s co-counsel Gilbert Hargrave was asked by the court, “was there any action taken by Mr. Andrews during the trial of this case that was in any way affected by the fact that he or his son had this book deal assignment?” Hargrave answered, “No. If there is such an action, I’m not aware of it. I did not observe it.” The federal district court concluded:

After further review of the record, the Court simply does not believe that the media rights contract affected Andrews’ performance at any conscious level, (footnote omitted). There is, of course, no adverse effect where there was no effect at ah.

The finding of the district court is shielded by the clearly erroneous standard, while that of the state courts is entitled to the presumption of correctness in habeas corpus proceedings. 28 U.S.C. § 2254(d). Those findings are that the media rights contract did not affect Andrews’s conduct of Beets’s defense. Accordingly, whether or not the media rights contract represented deficient performance under Strickland, it did not prejudicially affect Beets’s defense.

Beets continues to assert, however, that because of the media rights contract, Andrews was motivated to continue his work as defense counsel when he should have withdrawn and testified as a material defense witness. There is no support in the record for a finding concerning Andrews’s subjective motivation, and none has been made by the state or federal courts. Whether a lawyer-as-witness conflict existed, however, is a separate question to which we now turn.

2. Andrews as defense witness.

Beets’s theory that Andrews should have testified as a defense witness runs thus: if the jury believed that Andrews first suggested to her, eighteen months after Jimmy Don’s disappearance, the possibility of claiming Jimmy Don’s death benefits from the fire department, they could not find that Beets murdered Jimmy Don for remuneration. Andrews was therefore a material exculpatory witness who was ethically required to withdraw and testify on her behalf.

Both prongs of Strickland are at issue here: whether Andrews’s performance was unconstitutionally deficient and whether his failure to testify prejudiced the defense. From an ethical standpoint, the lawyer-as-witness conflict, unlike the loyalty conflict implicated by a media rights contract, is difficult to sort out. This court may be guided but is not constitutionally bound by the Texas Code of Professional Responsibility effective at the date of trial:

If, after undertaking employment in eon-templated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial....

Supreme Court of Texas, Code of Professional Responsibility, DR 5-102(A) (1982) (emphasis added). For reasons that are intuitively obvious, neither this nor similar provisions creates a bright-line ethical rule requiring withdrawal of a lawyer whenever he might be a witness for his client.²³ The constitutional evaluation of a lawyer’s decision whether to take the stand must also be flexible and must accord a heavy measure of deference to the lawyer’s presumed professional capability. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The essential inquiry is what sort of testimony he could have given in Beets’s defense.

Regarding the alleged advocate/witness conflict, the district court concluded that

Andrews obviously should have known of his dual status as witness and advocate prior to trial. Andrews’ dual status should have also been apparent to both the judge and district attorney as the trial unfolded.

The Court is persuaded that the conflict never occurred to any of the participants,

The court correctly found that the experi-eneed trial court participants never perceived of Andrews as a potential defense witness.²⁴ Perhaps it can be inferred from this collective unawareness that Andrews’s exculpatory testimony was not highly significant. But more important than speculation is a careful review of the state court and federal habeas records, which considerably diminishes the force of such potential testimony.

Beets relies heavily on an affidavit Andrews executed for the federal habeas proceeding stating that Beets

had no idea whether she was entitled to benefits. She did not even know whether benefits existed. She did not know, for instance, whether her husband had been insured, or whether he had a pension, nor did she know whether she was the beneficiary. She did not know who, if anyone, may have been her husband’s insurer or what amount he may have been insured for.

Andrews Affidavit ¶7. He also stated that he “was the one who mentioned the possibility that she may have been entitled to benefits.” Id. ¶ 10, Beets, 986 F.2d at 1487.

Taken at face value, the affidavit suggests that Andrews would have been a helpful witness to Beets. At the habeas hearing, however, his answers to questions posed by Beets’s new attorney were not nearly as strong:

Q. Well, as your affidavit states, I believe she came to you looking for insurance benefits, but not with respect to the death of Jimmy Don Beets, rather for a home that had been burned. Is that correct?

A. [Andrews] Well, I believe that was a mobile home.

Q. Correct. And it was your idea that she may have some benefits arising from this death and she had no idea of this. Is that correct?

A. Well, I thought it would be my idea and I think my obligation too because I don’t know if it’s in this affidavit or not, but her husband had been missing for quite some time and everybody in the community knew that. I knew Mr. Beets worked for the Fire Department. It was through an investigation of myself and two lawyers here in Tyler that we realized that some benefits might be due and payable.

Q. Did Ms. Beets suggest this or did you in your initial conversations with her?

A. Partner, that’s been a long time ago. I believe that I went into it first. I couldn’t swear to that and I’m under oath.

Q. Well, in your affidavit you’ve stated that you knew from your discussions with her that this was not the case, that is, that the State could not prove that she took the life of Mr. Beets for the purpose of remuneration. Is that correct? Is that a true statement?

A. What page are you reading from?

Q. That’s Paragraph 14.

A. That was my thought and belief. Yes, that’s true and correct.

Q. And just to reference Paragraph 7 of the affidavit, you also stated that when you first questioned Ms. Beets you quickly discovered that she had no idea whether she was entitled to benefits and you’ve sworn that that was a true statement. Is that correct?

A. That was a conclusion that I drew by my conversation with Betty Beets.

The most that Andrews could persuade the jury of was his “conclusion” that Betty Beets knew nothing of her husband’s benefits when she visited him.²⁵

Moreover, Andrews was not the only source of testimony that Beets was unaware of Jimmy Don’s death benefits before she visited Andrews. Beets herself so testified at trial under questioning by Andrews. Had Andrews elicited this testimony believing or knowing it to be false, he would be exposed to a charge of suborning perjury.

Additional testimony on Beets’s ignorance of the death benefits was adduced from Bruce Roberts. The only part of Andrews’s proposed testimony that Bruce Roberts could not replicate was Andrews’s affidavit statement that he had been the one to suggest to Beets that she seek her missing husband’s insurance and pension benefits. Beets vastly overrates the importance of this statement by Andrews, however. Because Andrews had no knowledge of Beets’s activities from the time of the murder until nearly two years later when she met with him, he could not testify as to her knowledge of what benefits might be available. Both he and Roberts could only draw an inference or speculate upon her state of mind from their conversations.

In any event, neither Andrews nor Roberts was the first witness to discuss Jimmy Don’s death benefits with Beets. That distinction belonged to Denny Burris, who testified that when he visited her a few days after the disappearance, she inquired about benefits. The fact of inquiry does not show that she knew beforehand of the existence of benefits, but her inquiry and discussion with Burris necessarily weakened the argument that, many months later, Beets’s attorneys thought she knew nothing of potential death benefits. Neither Andrews nor Roberts could dispel a certain skepticism about that claim.

Because Andrews’s potential testimony for Beets was cumulative, he was not a necessary witness for her defense and did not face a substantial advocate/witness conflict. His failure to withdraw and testify was not professionally unreasonable under Strickland.

Not only was Andrews’s potential exculpatory testimony largely cumulative, but when considered against the totality of evidence that Beets committed murder for remuneration, we cannot say that his failure to testify was prejudicial. Beets told her daughter Shirley Stegner, in connection with the murder of Beets’s fourth husband, that she would have lost the trailer, which he owned, if they had simply divorced. Beets surreptitiously tried to obtain a life insurance policy on Jimmy Don only months before he disappeared. After his death, Beets sold his boat and tried to sell and then to collect fire insurance proceeds on his separately owned trailer home. Chaplain Denny Burris testified that Beets was interested in Jimmy Don’s benefits within days after he “went fishing.” All of this evidence, as the Texas Court of Criminal Appeals noted, was pertinent to the question of Beets’s remunerative motive. Finally, the cold, calculated nature of the crime and its cover-up strongly suggested that Beets had a motive beyond simply getting rid of her husband after one year of marriage. She wanted it to appear that he died of natural causes. If he had merely disappeared, suspicion would have focused on her and she could not have benefited from the crime. Neither we nor the dissent can conclude that the result of her prosecution would in reasonable probability have differed if Andrews had testified.

D. Alternate Cuyler Holding

Finally, even if this en banc court has erred in suggesting that attorney conflicts of interest, apart from the multiple representation context, should be governed by the Strickland standard, we conclude that Beets’s claim also fails to garner relief under Cuyler. Because there was no objection at trial to either of the alleged conflicts, Beets had to establish the existence of an actual conflict that adversely affected her lawyer’s performance. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718.

The panel opinion first concluded there was no “actual conflict” of a witness/advocate nature because, as was shown in the preceding section, Andrews’s testimony was cumulative of other defense evidence and not materially more helpful to Beets. The panel also concluded that Beets alleged, at most, a merely hypothetical or speculative witness/advocate conflict, which did not materialize into an actual conflict that forced Andrews to choose between his self-interest and his duty to Beets. See Stevenson v. Newsome, 774 F.2d 1558, 1561-62 (11th Cir.1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 1476, 89 L.Ed.2d 731 (1986) (To establish an actual conflict “[i]t must be demonstrated that the attorney ‘made a choice between possible alternative courses of action, ... If he did not make such a choice, the conflict remained hypothetical.’”) (citations omitted); United States v. Litchfield, 959 F.2d 1514, 1518 (10th Cir.1992); United States v. Acevedo, 891 F.2d 607, 610 (7th Cir.1989); United States v. Horton, 845 F.2d 1414, 1419 (7th Cir.1988). The panel observed that Beets never proved that the potential conflict of interest developed into an actual conflict of interest.

The dissent has agreed that a witness/ad-voeate conflict alone is not the sort that even under their approach should be governed by a Cuyler inquiry. Because the entire court subscribes to the application of Strickland to this type of conflict, we are in agreement that Beets has not established a constitutional violation.

As to the media rights contract, there was no “actual conflict” under Cuyler because, as the record abundantly shows and as two judges on the panel held, the potential conflict speculated by Beets never materialized into an actual conflict in Andrews’s representation. The record does not demonstrate that the contract induced Andrews to compromise his zealous representation of Beets in favor of his own pecuniary interest. Absent a showing that Andrews nefariously chose to compromise his efforts in such a way, this court cannot conjecture otherwise. See, e.g., Stevenson, 774 F.2d at 1561-62; see also cases cited n. 20, supra.

The dissent also charges that the existence of an actual conflict inducing constitutionally ineffective assistance of counsel is a question of fact judged from an “objective” standpoint. However, the Supreme Court rejected this proposition in both Strickland and Cuyler. For instance, in Strickland, the Court explicitly recognized that

in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). Ineffectiveness is not a question of ‘basic, primary, or historical fact.’ Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact.

Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963)) (citing Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714). Consequently, as with the related question of constitutional ineffectiveness of counsel, the federal district court’s finding of an actual conflict inherent in the media rights contract is not shielded from appellate scrutiny by the clearly erroneous rule.

Finally, even if the media rights/witness conflict was an actual one, it did not adversely effect Andrews’s representation of his client.²⁶ The dissent seeks to apply a three part test used by the Second Circuit in Winkler v. Keane, 7 F.3d 304 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994), as the basis of its Cuyler analysis. The dissent thus argues that (1) there was an “actual conflict” for Cuyler purposes simply because of the existence of the media rights contract; (2) there was an “adverse effect” on Andrews’s representation because he could have withdrawn and testified for Beets; and (3) the remaining question, which must be remanded, is whether the media rights contract caused Andrews to withdraw. Our disagreements whether there was an actual or potential conflict and whether the conflict should be judged from an objective or subjective standpoint are of academic interest at this point, however. Even if we agreed with the dissent’s position on the first two Winkler issues, this en banc majority finds no basis for a remand for additional fact finding. The state courts did their job. Confronted with Beets’s allegation that Andrews ineffectively represented her because of the media rights contract, Andrews filed an affidavit specifically denying the charge. The state trial courts specifically found that the contract did not affect his zealous representation.

This federal court must accord a presumption of correctness to that finding. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981)²⁷. Further, although the federal district judge declined to plumb counsel’s subconscious motivation, he found no conscious effect of the media contract on Andrews’s decision not to testify. As the court put it, “Where there is no effect, there can be no adverse effect.” There is no point in remanding to give Beets a chance to prove what she has not yet proved in state or federal district court. The media rights contract did not adversely affect Andrews’s performance because it had no impact on his failure to testify. See Winkler, 7 F.3d at 310 (the court adheres to state court findings that contingent fee did not cause counsel’s strategy decisions).

Accordingly, Beets has not established that she was deprived of constitutionally effective counsel under Cuyler because of the media rights contract or Andrews’s dual status as witness/advocate.

CONCLUSION

For the foregoing reasons, the district court judgment granting the writ of habeas corpus must be REVERSED.

1 .Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

2 . Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

3 . The other issues dealt with in the panel opinion were not reheard by the court en banc and then-disposition is approved.

4 . Beets's son, Robbie, admitted at trial that he had set the boat adrift to give the appearance that Jimmy Don had fallen overboard. Jimmy Don’s heart pills had been spilled on the floor of the boat to make his disappearance seem accidental.

5 . The planter was also described as a "wishing-well.” Beets v. State, 767 S.W.2d at 739.

6 . The introduction of this evidence was upheld by the state appellate court. Beets v. State, 767 S.W.2d at 737^1.

7 . It is not clear that Beets was actually entitled to an evidentiary hearing. If Beets’s case arose today it is even more doubtful that she would have been so entitled under the cause-and-prejudice standard announced in Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Under Keeney, Beets would be entitled to an evidentiary hearing only if she could "show cause for [her] failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure." Id. at 11, 112 S.Ct. at 1721. Moreover, Beets’s failure to develop her claims in state court would be excused and a hearing mandated only if she could “show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Id.; cf. McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986).

8 . Cuyler has been routinely applied to cases in which an alleged attorney conflict resulted from serial representation of criminal defendants as well as simultaneous multiple representation. See, e.g., Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). For convenience, we denominate both of these situations as "multiple representation.”

9 . See Garcia v. Bunnell, 33 F.3d 1193, 1198 n. 4 (9th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1374, 131 L.Ed.2d 229 (1995) ("It is not logically necessary that the approach of these [multiple representation] cases also apply to conflicts between a defendant’s and the attorney’s own personal interests”).

10 . See, e.g., United States v. Hanoum, 33 F.3d 1128, 1130-32 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1702, 131 L.Ed.2d 564 (1995) (appeal dismissed without prejudice to bring again with more facts supporting allegation that attorney was having sex with defendant’s wife and therefore had incentive to make sure defendant was found guilty); Winkler v. Keane, 7 F.3d 304, 307-10 (2d Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994) (no adverse effect found in criminal defense contingency fee arrangement); United States v. Sayan, 968 F.2d 55, 64-65 (D.C.Cir.1992) (no actual conflict when attorney who was appointed one week before trial failed to request a continuance allegedly because he was afraid of adverse consequences to him and his firm if he filed such a motion); United States v. Michaud, 925 F.2d 37, 40-42 (1st Cir.1991) (no Sixth Amendment violation when defense attorney in tax case taught classes to IRS agents on how to detect tax fraud); United States v. Salerno, 868 F.2d 524, 540-41 (2d Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 25 (1989) (no actual conflict or adverse effect when attorney and his firm were being investigated by the government and were allegedly unusually cooperative with the government in defendant's case); United States v. Horton, 845 F.2d 1414, 1418-21 (7th Cir.1988) (no actual conflict and no adverse effect when attorney was "serious" candidate for U.S. Attorney during his representation of the defendant); United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir.1987) (found both actual conflict and adverse effect when lawyer was going to be indicted on unrelated matter at conclusion of case; lawyer had incentive to delay proceedings and evidenced poor effort in plea negotiations); Zamora v. Dugger, 834 F.2d 956, 960-61 (11th Cir.1987) (no actual conflict and no adverse effect on allegation that attorney was more interested in publicity than obtaining an acquittal); United States v. Ellison, 798 F.2d 1102, 1106-09 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987) (found both actual conflict and adverse effect when lawyer "testified” against defendant in a Rule 32 hearing fending off allegations by defendant which would constitute malpractice); United States v. Andrews, 790 F.2d 803, 810-11 (10th Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.E.2d 505 (1987) (no actual conflict and no adverse effect when court refused to allow attorney to withdraw from representation and start medical school); Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir.), cert. denied, 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154 (1985) (no actual conflict when attorney was being investigated by state bar while representing defendant).

11 . Wood was technically decided under the due process clause rather than the Sixth Amendment, because only the former provision sets constitutional bounds on parole revocation hearings. The Court analogized appellants’ rights in Wood to those in Cuyler, however.

12 . Justice White’s opinion, joined by Justices Burger and Rehnquist, pointed out the conflict in the resolution of this issue between the Illinois Supreme Court, Illinois v. Washington, 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.E.2d 393 (1984) (holding that Cuyler's conflict of interest standard is limited to the multiple representation context), and numerous federal courts. See, e.g., Westbrook v. Zant, 704 F.2d 1487, 1498-99 (11th Cir.1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir.1986) (Cuyler not limited to the multiple representation context); United States v. Harris, 701 F.2d 1095, 1099 (4th Cir.), cert. denied, 463 U.S. 1214, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983); United States v. Knight, 680 F.2d 470, 471 (6th Cir.1982) (per curiam), cert. denied, 459 U.S. 1102, 103 S.Ct. 723, 74 L.Ed.2d 950 (1983); Ware v. King, 694 F.2d 89, 92 (5th Cir.1982) (per curiam), cert. denied, 461 U.S. 930, 103 S.Ct 2092, 77 L.Ed.2d 302 (1983); Alexander v. Housewright, 667 F.2d 556, 558 (8th Cir.1981); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

13 . See United States ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1312 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987) ("The precise scope of the category of claims to which the Cuyler standard applies has not been definitively stated by the Supreme Court”); Hayes v. Lockhart, 766 F.2d 1247, 1250 (8th Cir.), cert. denied, 474 U.S. 922, 106 S.Ct. 256, 88 L.Ed.2d 263 (1985) (‘"[Tjhere is no litmus test to determine whether an actual conflict exists’") (citation omitted).

14 . See Johnston v. Mizell, 912 F.2d 172, 177 (7th Cir.1990), cert. denied., 498 U.S. 1094, 111 S.Ct. 982, 112 L.Ed.2d 1067 (1991) {“Cuyler presumption of prejudice cannot be applied blindly to every ineffective assistance of counsel claim involving a conflict of interest”); Williams v. Calderon, 52 F.3d 1465, 1472-73 (9th Cir.1995) (Cuyler does not extend to defendant's claim that pro bono attorney was burdened with impermissible conflict under Cuyler because payment for additional investigative and psychiatric services would have had to come out of lawyer’s own pocket); United States v. Zackson, 6 F.3d 911, 919-22 (2d Cir.1993) (Strickland, and not Cuyler, is the appropriate test when defendant alleged counsel's busy schedule created conflict in his representation of the case; this is not the kind of conflict subject to Cuyler rule).

Indeed, prior to Cuyler, a significant majority of the circuits precluded habeas relief absent a showing of prejudice arising from a conflict between the interests of the defendant and his attorney. See Gregory S. Sarao, Annotation, Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel, 53 A.L.R.Fed. 409, § 3 (1981) (Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits required prejudice whereas the Fifth, Eighth, and D.C. Circuits did not).

15 . The dissent's "rule” reserves Cuyler at least for attorney-client conflicts based on media rights contracts, contingent fee arrangements and conflicts arising from an attorney's involvement in criminal conduct with his client. The dissent, however, makes no effort to explain why these situations necessarily involve a greater constitutional risk than other ethical conflicts. Indeed, in light of the fact that hardly any criminal conviction has ever been reversed because of counsel's media rights contract, n. 19 infra, the dissent’s selection seems extraordinarily result-oriented.

16 . See also, ABA Model Rules of Professional Conduct, Rule 1.8, "Conflict of interests: prohibited transactions,” which list ten separate categories of "prohibited" transactions between an attorney and client, only two of which, §§ (f) and (g) deal respectively with a lawyer’s receipt of compensation for representing a client from a third party and a lawyer's duty in regard to settlement when representing two or more clients in a civil or criminal proceeding. See generally, Developments in the Law — Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244 (1981). For simplicity, the ABA Model Rules will be referenced in this discussion because they reflect prevailing standards in most United States jurisdictions. See also Raymond L. Wise, Legal Ethics 73-76 (1979 Supp.).

17 . Although we have no occasion to discuss the question here, a powerful argument can be made that a lawyer who is a potential co-defendant with his client is burdened by a “multiple representation” conflict that ought to be analyzed under Cuyler.

18 . There is another reason why multiple representation cases are more amenable to Cuyler's fairly rigid rule of presumed prejudice. They are amenable to prophylactic rules requiring court oversight of potential conflicts. Self-interested duty of loyalty problems ordinarily defy prophylactic treatment, suggesting appropriateness of a real prejudice standard for after-the-fact review.

19 . See United States v. Hearst, 638 F.2d 1190 (9th Cir.1980) cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Mark R. McDonald, Literary-Rights Fee Arrangements in California: Letting the Rabbit Guard the Carrot Patch of Sixth Amendment Protection and Attorney Ethics?, 24 Loy.L.A.L.Rev. 365 (1991); American Bar Ass'n Standards for Criminal Justice, Standard 4-3.4 (2d ed. 1980); American Bar Ass’n, Model Code of Professional Responsibility, DR 5-104(B); American Bar Ass'n, Model Rules of Professional Conduct, Rule 1.8(d).

20 . See Buenoano v. Singletary, 963 F.2d 1433, 1438-39 (11th Cir.1992) (remanded for eviden-tiary hearing on whether fee arrangement that gave first $250,000 of book and movie contract to the attorney created an actual conflict and an adverse effect); United States v. Manera, 768 F.2d 201, 205-09 & n. 6 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986) (found no actual conflict and no adverse effect in fee arrangement involving movie rights); United States v. Hearst, 638 F.2d 1190, 1193-94 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981) (remanded for a hearing on whether F. Lee Bailey’s book contract with Patty Hearst created an actual conflict of interest); Wojtowicz v. United States, 550 F.2d 786, 793 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2938, 53 L.Ed.2d 1071 (1977) (Pre-Cuyler case found no prejudice from movie rights deal); Ray v. Rose, 535 F.2d 966, 973-75 (6th Cir.), cert. denied, 429 U.S. 1026, 97 S.Ct. 648, 50 L.Ed.2d 629 (1976) (Pre-Cuyler case found no prejudice from media rights contract with attorney); Maxwell v. Superior Court, 30 Cal.3d 606, 180 Cal.Rptr. 177, 186-87, 639 P.2d 248, 257 (Cal.1982) (publication rights contract between attorney and defendant does not per se render counsel ineffective and conflicts of interest created thereby are waivable); People v. Bonin, 47 Cal.3d 808, 835, 254 Cal.Rptr. 298, 313-14, 765 P.2d 460, 475 (Cal.1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (no reversible error in literary rights fee arrangement); People v. Gacy, 125 Ill.2d 117, 134, 125 Ill.Dec. 770, 530 N.E.2d 1340, 1347 (1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989) (no conflict of interest when attorney rejected offer by defendant to grant attorney book rights); Stafford v. State, 669 P.2d 285, 296-97 (Okla.Crim.App.) cert. granted and judgment vacated, 467 U.S. 1212, 104 S.Ct. 2652, 81 L.Ed.2d 359 (1984) (no actual conflict or adverse effect from publication rights contract); People v. Corona, 80 Cal.App.3d 684, 720-21, 145 Cal.Rptr. 894, 916 (Cal.Ct.App.1978) (found media rights conflict created an actual conflict and resulted in prejudice when "trial counsel assumed a position virtually adverse to his client and, totally unsupported by strategic or tactical considerations, took deliberate steps to thwart the development of viable defenses”); Dumond v. State, 294 Ark. 379, 743 S.W.2d 779, 784-85 (1988) (no actual conflict in media rights contract between attorney and defendant and his wife).

21 . See, e.g., United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); People v. Corona, 80 Cal.App.3d 684, 145 Cal.Rptr. 894 (Cal.Ct.App.1978).

22 . See United States v. Marrera, 768 F.2d 201, 207-08 (7th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 321 (1986).

23 . The State contends that Roberts’s testimony renders Andrews’s potential testimony merely cumulative. The State asserts that where an attorney’s testimony is not essential to the case, or would be merely cumulative of other evidence, there is no ethical duty placed upon Texas lawyers to withdraw from representation. See State Bar of Texas, Ethical Considerations on Code of Professional Responsibility, EC 5-10 (1972):

It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue.

24 . Nothing in the record suggests that the prosecutor or trial judge thought Andrews was a possible witness, and Andrews was never directly asked at the federal habeas hearing whether he should have been a defense witness. Andrews stated that he believed Betty Beets did not commit the murders, but she was at first reluctant to reveal the true facts to him because of the implication for her children’s guilt. Andrews did not consider withdrawing as Beets's attorney:

Q. [McGlasson] It never occurred to you during the trial to withdraw, to move to withdraw or no one suggested that you should do that. Is that correct?

A. Well, it sort of occurred to me when I found out I wasn’t being paid, but I didn’t. It occurred to me, I’m going to have to be honest with you, but I didn't do it.

Q. But that was the only reason that it might have occurred to you is that you felt like you weren’t receiving any payment. Is that correct?

A. Well, that’s true. I’m not doing this as a hobby.

Q. Right. There’s no other reason you could think of during the trial why you should withdraw from this case. Is that correct?

A. From Ms. Stegner’s case I did withdraw, there became a conflict. From Betty’s case, I felt strongly toward this case and, no, I wouldn’t let her down. Unh-unh.

Q. Right. Okay.

A. Not even for money, and I didn't get any.

25 . Not only was Andrews's testimony limited to his inference about Beets’s knowledge, but such testimony might well have led to incriminating cross-examination on his earlier dealings with Beets.

26 . With due respect, the dissent’s claim that this opinion somehow "conflates the existence and effect elements of the [Cuyler ] analysis” is mistaken. Of course, both elements are necessary before this court can grant habeas corpus relief under Cuyler; Beets does not prove either element.

This court's structured inquiry closely mirrors and is instructed by the Supreme Court’s approach in Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct. 3114, 3121, 97 L.Ed.2d 638 (1987), which held that "the asserted actual conflict of interest, even if it had been established, did not harm [the] lawyer's advocacy.” Likewise, had Beets been able to prove an actual conflict, habeas relief should still be denied because Beets did not demonstrate that it adversely affected her representation.

Given the approach in Burger, the dissent’s critique obfuscates the proper disposition of this case. Since both the state court and the district court agreed that the media rights contract had no effect on Andrews's representation of Beets, there is no need for a remand; relief under Cuyler is unavailable as soon as the petitioner fails to prove either an actual conflict or an adverse effect.

27 . In relevant part, 28 U.S.C. § 2254(d) provides that

In any proceeding instituted in a Federal court ... for a writ of habeas corpus ..., a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State ... were parties, ... shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear ...

28 U.S.C. § 2254(d). Thus, the statute unambiguously dictates that the presumption of correctness afforded by this court is mandatory, not permissive. This presumption can only be rebutted if the petitioner proves one of the statutory exceptions. See 28 U.S.C. § 2254(d)(1) — (8). Since the dissent concedes that “no party has addressed the presumption of correctness," the presumption has not been rebutted and this court must adopt it.

Moreover, this court neither adopts nor raises this presumption anew. To the contrary, we emphasize and rely on both the state and district courts’ fact finding that the petitioner’s grant of media rights to Andrews’s son did not affect her representation at all.