## Facts

- Mark Joseph Fogarty was arrested and charged in Georgia with kidnapping, aggravated assault, simple battery, and multiple counts of stalking.
- Without Fogarty’s knowledge, Fogarty’s wife hired private defense counsel and paid an advanced fee of $25,000.
- Counsel and Fogarty’s wife also agreed that if the charges were dismissed and a different suspect was identified, counsel’s fee would be reduced to $10,000.
- The charges were not dismissed, and the case proceeded to trial.
- A jury acquitted Fogarty on some counts but convicted him on others.
- On appeal, Fogarty argued the fee arrangement created a conflict of interest because counsel would receive more money if the case was not dismissed, allegedly giving counsel a financial reason not to pursue dismissal or avenues pointing to another suspect.
- The Georgia Court of Appeals characterized the arrangement as an improper “contingency fee” contract and concluded it created an actual conflict, but it affirmed because Fogarty did not show the arrangement adversely affected counsel’s performance.
- The Supreme Court of Georgia granted certiorari to review that holding and the Court of Appeals’ analysis.

## Issues

1. Whether the advanced-fee agreement, with a reduction if charges were dismissed and another suspect identified, established a constitutionally significant conflict of interest affecting Fogarty’s right to effective assistance of counsel.
2. Whether Fogarty was entitled to relief without a showing of harm, or instead had to show that the alleged conflict caused an adverse effect on counsel’s performance and/or satisfy the prejudice requirement for ineffective assistance.

## Decision

- The Supreme Court of Georgia affirmed Fogarty’s convictions.
- The court held the Court of Appeals proceeded on an erroneous premise in treating the fee arrangement as a contingency-fee contract in the usual sense, though the arrangement raised conflict concerns.
- The court concluded Fogarty was not entitled to relief based on the fee structure alone.
- Fogarty failed to show that the arrangement actually affected counsel’s performance in a way that harmed the defense, and he therefore failed to establish ineffective assistance requiring reversal.

## Legal Principles

- To obtain relief for ineffective assistance of counsel, a defendant generally must prove (1) deficient performance and (2) resulting prejudice to the defense. *Strickland v. Washington*.
- Conflicts of interest can violate counsel’s duty of loyalty, but a claimed conflict does not automatically require reversal.
- Presumed prejudice is limited to narrow situations where counsel is effectively denied; most claims require a showing that the conflict had a real, harmful effect on counsel’s performance.
- A fee arrangement that arguably misaligns incentives does not, without proof of adverse effect on counsel’s decisions or defense strategy, establish a Sixth Amendment violation.

## Conclusion

Fogarty’s wife’s fee agreement with counsel, including a potential reduction if charges were dismissed and another suspect identified, did not itself require reversal of Fogarty’s convictions. The Supreme Court of Georgia affirmed because Fogarty did not demonstrate that the agreement caused counsel to perform deficiently in a way that harmed the defense, and the record did not show the type of adverse effect (or prejudice) needed for relief on an ineffective-assistance claim.


Fogarty v. State, 513 S.E.2d 493 (1999)