In UNITED STATES v. NICHOLSON, the Fourth Circuit considered the issue of unconsentable conflicts in a criminal defense setting. Nicholson asserted that his lawyer was operating under an actual conflict of interest at his August 29, 2001 sentencing hearing because, at that time, Nicholson's lawyer, Jon Babineau, was representing Nicholson as well as another client, Lorenzo Butts. Butts had previously threatened to kill Nicholson and his family, had attempted to kill Nicholson's brother, and had already killed Nicholson’s step-father. Nicholson, who was convicted of a federal offense for his possession of a firearm and ammunition by a felon, asserted that he carried the handgun to protect himself from Butts. Nicholson maintained that Babineau, during the sentencing proceedings, failed to request a downward departure based on Nicholson's need to carry the handgun because, in so doing, Babineau would have accused his other client (Butts) of uncharged criminal conduct.
The panel agreed that an actual conflict of interest existed. Although Nicholson and Butts were not charged with offenses arising out of the same set of circumstances, Nicholson's interests, on the one hand, and Butts' interests, on the other, were in total opposition to each other during Babineau' s simultaneous representation of them. The panel remanded to the district court for a determination of whether this conflict affected Babineau's performance at the sentencing hearing.