DISCRETE AND RELATIONAL CRIMINAL REPRESENTATION - THE CHANGING VISION OF THE RIGHT TO COUNSEL

As courts have begun to face large numbers of drug and organized crime cases, they have increasingly encountered a new form of attorney-client relationship that has prompted the judiciary to curtail the reach of right-to-counsel protections. Professor Karlan examines the motivations behind this trend. She outlines the functional differences between the "discrete" attorney-client relationships that courts have protected in the past and the "relational" representation that has become increasingly prevalent in corporate and criminal enterprise cases. She analyzes the courts' treatment of three issues in light of these differences: the right of codefendants to waive conflict-free representation- the ability of government investigators to contact Persons known to be represented by counsel; and the propriety of applying forfeiture statutes to funds intended for criminal defense. Professor Karlan points out that in such cases courts often place society's interest in accurate verdicts ahead of the defendant's interests in protecting his light to choice of counsel. In light of this phenomenon, Professor Karlan warns that decisions whether to protect relational representation should be contextual: decisionmakers must consider the social value of relational representation in particular factual contexts. If context is not considered, restrictions on relational representation may become a ploy for prosecutors who simply intend to impair the effectiveness of defense counsel.