The defendant in People v. Fayed, an automatic direct death penalty appeal in the Supreme Court, is uncommonly represented by retained rather than appointed counsel. Earlier this week, the court indicated it is concerned about a possible ethical violation by counsel that could lead to disbarment.
Fayed was scheduled for argument on the court’s September calendar. Six days before the argument, however, the court took it off calendar. This past Wednesday, the court made apparent the reason for the continuance.
The court directed defense counsel to file a brief — and to personally serve the defendant, James Fayed, with the brief — “addressing counsel’s compliance with any and all Rules of Professional Conduct and related provisions, as implicated by former prosecutor Alan Jackson’s affiliation with counsel’s law firm. (See, e.g., Code Civ. Proc., § 128; Rules Prof. Conduct, rules 1.7 & 1.11; Bus. & Prof. Code, § 6131.)” (Links added.)
The referenced section 6131 provides for misdemeanor liability and mandatory disbarment in certain situations where an attorney acts both in the prosecution and the defense of a case. The professional conduct rules concern conflicts of interest both generally and specifically as related to former government employees.
According to news reports, Jackson was a Los Angeles deputy district attorney involved in the successful prosecution of the defendant, who was convicted and sentenced to death for paying for his wife’s murder. (Here and here.) He is now a partner at the firm that defended Fayed at trial and that is handling the automatic appeal. His bio on the firm’s website includes the quote, “Because of my experience as a former Los Angeles District Attorney, I understand criminal cases from every angle.” He is not listed on the court’s website as counsel of record in the appeal.
Defense counsel’s brief is due October 9.