Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
Tennessee, 501 U. S. 808 (1991). Because a lawyer's fiduciary relationship with his deceased client survives the client's death, Swidler & Berlin v. United States, 524 U. S. 399 (1998), Saunders necessarily labored under conflicting obligations that were irreconcilable. He had a duty to protect the reputation and confidences of his deceased client, and a duty to impeach the impact evidence presented by the prosecutor.4
Saunders' conflicting obligations to his deceased client, on the one hand, and to his living client, on the other, were unquestionably sufficient to give Mickens the right to insist on different representation.5 For the "right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client," Von Moltke v. Gillies, 332 U. S. 708, 725 (1948).6 Moreover, in my judgment, the right to conflict-free counsel is just as firmly protected by the Constitution as the defendant's right
4 For example, at the time of Hall's death, Saunders was representing Hall in juvenile court for charges arising out of an incident involving Hall's mother. She had sworn out a warrant for Hall's arrest charging him with assault and battery. Despite knowledge of this, Mickens' lawyer offered no rebuttal to the victim-impact statement submitted by Hall's mother that " 'all [she] lived for was that boy.' " Id., at 297.
5 A group of experts in legal ethics, acting as amici curiae, submit that the conflict in issue in this case would be nonwaivable pursuant to the standard articulated in the ABA Ann. Model Rules of Professional Conduct (4th ed. 1999) (hereinafter Model Rule). Brief for Legal Ethicists et al. as Amici Curiae 16 ("[T]he standard test to determine if a conflict is non-waiveable is whether a 'disinterested lawyer would conclude that the client should not agree to the representation under the circumstances' " (quoting Model Rule 1.7, Comment 5)). Unfortunately, because Mickens was not informed of the fact that his appointed attorney was the lawyer of the alleged victim, the questions whether Mickens would have waived this conflict and consented to the appointment, or whether governing standards of professional responsibility would have precluded him from doing so, remain unanswered.
6 Although the conflict in this case is plainly intolerable, I, of course, do not suggest that every conflict, or every violation of the code of ethics, is a violation of the Constitution.
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