Judge Adalberto Jordan, U.S. Court of Appeals for the Eleventh Circuit. (Photo: J. Albert Diaz/ALM)

A defense attorney had a possible conflict of interest in representing two clients in one case when one became a witness against the other, the U.S. Court of Appeals for the Eleventh Circuit ruled.

“Divided loyalties often prove to be a source of mischief in human relations. As this case illustrates, they can also cause serious trouble for an attorney and his client,” Judge Adalberto Jordan wrote for a panel that included Circuit Judge Gerald Tjoflat and U.S. District Judge Paul Huck of Miami, sitting by designation.

The panel ordered a hearing on the possibility of a new trial — with a new lawyer — for one of the clients of Kim Minix in a drug conspiracy case.

Minix is an attorney in the Albany office of the Kenneth Nugent Law Firm. He did not return messages requesting comment.

Minix represented Stephon Williams in a seven-day trial while also representing Tyree Bennett, who had pleaded guilty and was a government witness against Williams.

To complicate matters, Bennett had also been convicted of obstruction of justice for attempting to market a “cooperation-for-hire scheme” to other inmates seeking sentence reductions, Jordan said.

In a sidebar conversation before Bennett took the stand, Minix reminded the judge about “an agreement that there wasn’t going to be any questions that would create a conflict.”

The prosecutor agreed, saying, “The government is not going to ask him any questions about Mr. Williams, Mr. Minix’s client.”

The bench conference ended with Senior U.S. District Judge E. Louis Sands saying, “I recall that’s the understanding.”

But Jordan noted there was nothing in the record about a previous discussion or agreement on the scope of Bennett’s testimony or any indication Williams was aware of a possible conflict, “let alone any indication that he knowingly and intelligently waived his right to conflict-free counsel.”

Even though Minix knew the extenuating circumstances, he declined to cross-examine Bennett to impeach his testimony, the court noted.

Williams was found guilty and sentenced to 20 years. His new lawyer on appeal contended Minix was ineffective in defending him.

“On appeal, Mr. Williams — represented by different counsel — contends that he is entitled to a new trial because Mr. Minix, due to his simultaneous representation, passed up a valuable opportunity to cross-examine and impeach Mr. Bennett,” Jordan wrote. “We conclude that Mr. Minix labored under a conflict, and that Mr. Williams is entitled to an evidentiary hearing to explore whether this conflict adversely affected Mr. Minix’s performance.”

Sydney Strickland of Strickland Webster in Atlanta represented Williams on appeal.

“Mr. Williams was constitutionally entitled to an attorney who was fully committed to zealously advocating on his behalf,” Strickland said by email Friday. “His attorney plainly could not act in Mr. Williams’ best interests while simultaneously representing a witness who testified on behalf of the government at trial.  We look forward to the evidentiary hearing, after which we are confident Mr. Williams’ conviction will be vacated.”

The office of U.S. Attorney Charles Peeler in the Middle District of Georgia argued there was “no harm, no foul” and “nothing to be gained” from Minix cross-examining Bennett.

But the appellate panel said they can’t be sure and sent the case back to the Middle District to consider the question of harm.

“We think it is best to remand the case to the district court so that it can hold an evidentiary hearing and flesh out all of the relevant facts relating to Mr. Williams’ conflict of interest claim,” Jordan said. “We do not know what other reasons Mr. Minix might have had — aside from the divided loyalties resulting from his simultaneous representation — to forgo cross-examination of Mr. Bennett.”