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The first question to be addressed is what role prevailing professional norms play in a Sixth Amendment conflict analysis. The amiciwho style themselves the "legal ethicists" contend, in essence, that every breach of prevailing professional norms should be deemed a violation of the Sixth Amendment and result, without more, in successful collateral attack on final judgment in a criminal case. See Brief for Legal Ethicists et al. as Amici Curiae 17 (cited below as "Legal Ethicists' Brief"). However, this Court has already duly considered and unequivocally rejected this notion.
"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. When examining attorney conduct, a court must be careful not 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 to define and apply the standards of professional conduct applicable to those it admits to practice in its courts." Nix v. Whiteside, 475 U. S. 157, 166 (1986).
Not only is the position of the "legal ethicists" not dictated by precedent in this habeas case, see Lambrix v. Singletary, 520 U. S. 518, 529 (1997), the exact opposite is dictated by precedent.
The rules governing whether conduct is ethical and the rules governing when final judgments will be set aside differ for good reason. The rules of professional ethics operate prospectively. Their goal is to tell lawyers in advance what they may and may not do in order to prevent or at least minimize the possibility of future harm. This is a fundamentally different purpose from that of a remedial system designed to correct or compensate for harms that have already occurred.
By analogy, the prohibition against driving while intoxicated is a preventative rule. It prohibits an action which creates a danger of harm even though it is not inherently harmful. A person who violates that prohibition may be punished, even though he makes it home without hurting anyone. The remedial system comes into action if and only if the drunk driver actually causes harm. Then a private person will have an action for damages against the driver and the owner of the car, and in most cases the car's insurer is the one who actually pays. Actual harm creates both the private right of action, as opposed to a public prosecution, and widens the net to persons other than the malefactor.
Amici supporting petitioner protest the lack of "legal consequence" if a conflict causing no harm does not result in the setting aside of this final judgment. See Legal Ethicists' Brief 17. Not so. Attorneys who breach the rules without causing harm, like drunk drivers who do not cause accidents, are subject to public prosecution, i.e., bar discipline. For a private party, the client, to obtain redress from the state, which is not the malefactor, actual harm should be shown.
The Court in Nix v. Whiteside nonetheless went on to examine professional norms, employing them as marking the outer boundary of possible Sixth Amendment requirements. "Since there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel under the Strickland standard." 475 U. S., at 175. If the present case involves no conflict under prevailing norms, then there is no conflict violating the Sixth Amendment, although the converse is not necessarily true.
Amici supporting petitioner insist that trial counsel had an actual conflict of interest as a result of his prior, brief representation of the murder victim in an unrelated matter, independently of whether any confidential information is involved. See Legal Ethicists' Brief 13. This argument glosses over the distinction between current and former clients. Amici's premise is that a lawyer has a continuing duty of loyalty to former clients not to bring out information damaging to their reputation, even if that information is unrelated to the prior representation and independent of any confidential communication. This premise is false.
The American Bar Association Model Rules of Professional Conduct (2001 ed.) (cited below as "Model Rules") have separate rules for present and former clients. The differences are significant:
"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:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation.
"(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 interest, unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." Id., Rule 1.7, at 24-25 (emphasis added, footnote omitted).
"RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT
"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
[(b) omitted]
"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."Id., Rule 1.9, at 32-33 (emphasis added, footnote omitted).
Rule 1.7(a) establishes a general duty of nonadversity for present clients. In sharp contrast, Rule 1.9 limits the duty regarding former clients to the "same or substantially related matter." The Restatement is in accord. See 2 American Law Institute, Restatement (Third) of the Law Governing Lawyers §132, pp. 376-377 (2000). The forcible sodomy and brutal murder of Timothy Hall by Walter Mickens is not "substantially related" to the allegations that Hall previously shoved his mother and wrapped a bread knife in newspaper. Trial counsel Saunders was therefore partially correct when he stated that his duty to Hall ended with Hall's death and the dismissal of the charges against him.
As amicus Deborah Rhode puts it,
"In general, this personal loyalty to current clients ends when the representation ends. If lawyers were unable to accept new matters adverse to past as well as current clients, the rules would be unworkable. . . . Thus, it is often said that the rules governing simultaneous representation of conflicting interests are based on loyalty and confidentiality, while the rules governing successive representation are based on confidentiality alone." D. Rhode & D. Luban, Legal Ethics 518 (2d ed. 1995).
The only potential conflict lay in the continuing duty to preserve client confidences under Rule 1.9(c). This is where the evidentiary hearing in the habeas court comes in.
Like other ineffective assistance issues, conflict issues normally cannot be decided on the appellate record. That is why they are typically determined on collateral review, with an evidentiary hearing. Such a hearing was held in this case. The case is not to be decided on a cold appellate record, drained of content by the very alleged conflict at issue. Cf. Brief for Petitioner 45. This case is to be decided after a full evidentiary hearing with the opportunity to summon and present witnesses.
Trial counsel testified and the District Court found that no pertinent confidential information is involved in this case. SeeMickensv.Greene, 74 F. Supp. 2d 586, 606 (DC ED Va. 1999), J. A. 290-291. The requirement of confidentiality does not preclude the use of "information relating to a former client that is in the 'public domain . . . .' " Model Rules, supra, at 35; accord Restatement, supra, §132(2), at 377 ("unless that information has become generally known"). The information adverse to Hall's reputation had been printed in the local newspaper, see supra, at 2, and it is difficult to get more "public" than that. Petitioner insists that counsel was ethically forbidden to investigate based on formerly confidential leads when the essence of the information had since been printed in the newspaper. Brief for Petitioner 44. Under prevailing norms there is no such ethical constraint and hence, under Nix v. Whiteside, supra, no Sixth Amendment conflict.
Undoubtedly, trial counsel in this case demonstrated an ethical tin ear. The proper course was to disclose the facts to both defendant and the court, make a record that no actual conflict existed, and permit defendant to request different counsel if he had any doubts of Saunders' loyalty. See 74 F. Supp. 2d, at 601. Yet even a tone deaf musician can strike a correct chord occasionally. Saunders blundered his way to the correct conclusion that no actual conflict existed in this case.
The question presented in this case is, "Did the Court of Appeals err in holding that a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known?" Mickens v. Taylor, 532 U. S. __, 149 L. Ed. 2d 467, 121 S. Ct. 1651 (2001). The issues to be considered by the Court are therefore limited to this question and those "fairly included therein." See Supreme Court Rule 14.1(a).
The nonretroactivity principle of Teague v. Lane, 489 U. S. 288 (1989) is "fairly included therein." "A threshold question ineveryhabeas case . . . is whether the court is obligated to apply the Teague rule to the defendant's claim." Caspari v. Bohlen, 510 U. S. 383, 389 (1994) (emphasis added). Arguing nonretroactivity in the body of the argument at the petition stage is sufficient to preserve the issue even for the certiorari petitioner. Id., at 389-390. A fortiori, it is sufficient for the certiorari respondent, see Brief in Opposition 24-25, 28-29 (retroactivity argument), who has broader latitude to defend rather than attack the judgment below. See Schenck v.Pro-Choice Network, 519 U. S. 357, 384, n. 12 (1997).
For the reasons stated in part III, infra, and in respondent's brief, this Court's precedents make the question presented straightforward even on a de novo basis. (That is, the answer is "no.") However, the answer is even clearer under Teague, because the Court need only ask what the rules were in 1997, not the always-debatable question of whether they should be changed. The Teague rule has been criticized as complicating the habeas court's task, see, e.g., Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L. Rev. 1015, 1042 (1993), but the complications come primarily from attempts to evade the rule. The principle simply is that any pushing of the legal envelope must be done on direct review. So, too, must resolution of conflicts where multiple, well-considered decisions are divided. See Caspari v. Bohlen, 510 U. S., at 395. Habeas is strictly for enforcement of existing rules. The Teague issue is clear whenever the underlying question is close, as well as when the underlying question is clear in the state's favor. See Williams v. Taylor, 529 U. S. 362, 412 (2000) (noting equivalence of Teague "old rule" with "clearly established" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")). Both Teague and the AEDPA's similar rule of 28 U. S. C. §2254(d) will usually make it unnecessary to decide the underlying question. As soon as the habeas court determines that the proposed rule would be "new" or is not "clearly established," or that a state court's application of an old rule is "reasonable," its task is finished. See Teague, 489 U. S., at 316; Penry v. Johnson, 532 U. S. __, 150 L. Ed. 2d 9, 23-24, 121 S. Ct. 1910, 1919 (2001) ("We need not and do not decide . . ."). Properly applied, Teague and §2254(d) streamline rather than complicate the habeas process. See Williams, supra, at 404 (congressional purpose "to curb delays").
Despite the considerable overlap between Teague and §2254(d), Teague survives as an independent limitation on the habeas remedy. Some early post-AEDPA writings of the opponents of habeas reform postulated that Teague had been supplanted. See, e.g., Liebman & Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of the Federal Courts, 98 Colum. L. Rev. 696, 866 (1998). That was wishful thinking on their part. See Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 959, n. 500 (1998).
In particular, the Teague rule applies and has independent force where there has been no state court decision on the merits of the claim, and hence §2254(d) is inapplicable. Most such claims are either unexhausted or procedurally defaulted, but in a few cases they may be decided on Teague grounds. Teague was applied in the post-AEDPA case of Breard v. Greene, 523 U. S. 371, 376-377 (1998) (per curiam), to reject a claim when petitioner contended that the novelty of the claim excused his default. Occasionally it may be more efficient to dispose of a defaulted claim on Teague grounds when the default issue presents difficult questions while the Teague issue is straightforward. See Lambrix v. Singletary, 520 U. S. 518, 525 (1997). Teague can also preclude a defaulted claim where the "cause and prejudice" exception to default has been met.
In the present case, the Court of Appeals found the "cause" element established. Mickens v. Taylor, 240 F. 3d 348, 356 (CA4 2001) (en banc). The court then held that if petitioner could qualify for the Sixth Amendment "presumption of prejudice" by establishing both actual conflict and adverse effect, that presumption would carry over to the prejudice prong of the procedural default analysis. Id., at 357. Since that issue is not fairly included in the question presented, amicus will not address it. It is sufficiently knotty to bring this case within the rationale of Lambrix, invert the usual order of decision, and dispose of this Teague-barred claim on Teague grounds rather than procedural default.
"In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teaguepurposes. Second, the court must '[s]urve[y] the legal landscape as it then existed,' [citation] and 'determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,' [citation]. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle." Bohlen, 510 U. S., at 390 (alterations in Bohlen).
The date of finality is October 14, 1997. See Mickens v. Virginia, 520 U. S. 1269 (June 9, 1997) (denying certiorari on direct appeal), reh'g denied, 522 U. S. 928 (Oct. 14, 1997); Bohlen, supra, at 390 ("final" when certiorari "finally denied"); Missouri v. Jenkins, 495 U. S. 33, 46 (1990) (judgment not final while rehearing petition pending, in a different context).
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2. Petitioner's proposed rule would not legalize murder and forcible sodomy. A rule overturning convictions for a defect that had no
effect whatever on the outcome does not implicate the fundamental fairness and accuracy of the criminal proceeding, at least not in a
positive direction. Cf. Bohlen, supra, at 396.