author: Mr. Chief Justice Burger Mr. Justice Powell,

text:
    HOLLOWAY et al. v. ARKANSAS
    No. 76-5856.
    Argued November 2, 1977
    Decided April 3, 1978

      Burger, C. J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Blacicmun and Rehnquist, JJ., joined, post, p. 491.

      Harold L. Hall argued the cause and filed a brief for petitioners.

      Joseph H. Purvis, Assistant Attorney General of Arkansas, argued the cause pro hac vice for respondent. With him on the brief were Bill Clinton, Attorney General, and Robert Alston Newcomb, Assistant Attorney General.

        Howard B. Eisenberg filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal.

        Rollie R. Rogers filed a brief for the Office of the Colorado State Public Defender as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioners, codefendants at trial, made timely motions for appointment of separate counsel, based on the representations of their appointed counsel that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. We granted certiorari to decide whether petitioners were deprived of the effective assistance of counsel by the denial of those motions. 430 U. S. 965 (1977).

I

Early in the morning of June 1, 1975, three men entered a Little Rock, Ark., restaurant and robbed and terrorized the five employees of the restaurant. During the course of the robbery, one of the two female employees was raped once; the other, twice. The ensuing police investigation led to the arrests of the petitioners.

On July 29, 1975, the three defendants were each charged with one count of robbery and two counts of rape. On August 5, the trial court appointed Harold Hall, a public defender, to represent all three defendants. Petitioners were then arraigned and pleaded not guilty. Two days later, their cases were set for a consolidated trial to' commence September 4.

On August 13, Hall moved the court to appoint separate counsel for each petitioner because “the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases ...” After conducting a hearing on this motion, and on petitioners’ motions for a severance, the court declined to appoint separate counsel.

Before trial, the same judge who later presided at petitioners’ trial conducted a Jackson v. Denno hearing to determine the admissibility of a confession purportedly made by petitioner Campbell to two police officers at the time of his arrest. The essence of the confession was that Campbell had entered the restaurant with his codefendants and had remained, armed with a rifle, one flight of stairs above the site of the robbery and rapes (apparently serving as a lookout), but had not taken part in the rapes. The trial judge ruled the confession admissible, but ordered deletion of the references to Campbell’s codefendants. At trial one of the arresting officers testified to Campbell’s confession.

On September 4, before the jury was empaneled, Hall renewed the motion for appointment of separate counsel “on the grounds that one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.” The court responded, “I don’t know why you wouldn’t,” and again denied the motion.

The prosecution then proceeded to present its case. The manager of the restaurant identified petitioners Holloway and Campbell as two of the robbers. Another male employee identified Holloway and petitioner Welch. A third identified only Holloway. The victim of the single rape identified Holloway and Welch as two of the robbers but was unable to identify the man who raped her. The victim of the double rape identified Holloway as the first rapist. She was unable to identify the second rapist but identified Campbell as one of the robbers.

On the second day of trial, after the prosecution had rested its case, Hall advised the court that, against his recommendation, all three defendants had decided to testify. He then stated:

“Now, since I have been appointed, I had previously filed a motion asking the Court to appoint a separate attorney for each defendant because of a possible conflict of interest. This conflict will probably be now coming up since each one of them wants to testify.
“THE COURT: That’s all right; let them testify. There is no conflict of interest. Every time I try more than one person in this court each one blames it on the other one.
“MR. HALL: I have talked to each one of these defendants, and I have talked to them individually, not collectively.
“THE COURT: Now talk to them collectively.”

The court then indicated satisfaction that each petitioner understood the nature and consequences of his right to testify on his own behalf, whereupon Hall observed:

“I am in a position now where I am more or less muzzled as to any cross-examination.
“THE COURT: You have no right to cross-examine your own witness.
“MR. HALL: Or to examine them.
“THE COURT: You have a right to examine them, but have no right to cross-examine them. The prosecuting attorney does that.
“MR. HALL: If one '[defendant] takes the stand, somebody needs to protect the other two’s interest while that one is testifying, and I can’t do that since I have talked to each one individually.
“THE COURT: Well, you have talked to them, I assume, individually and collectively, too. They all say they want to testify. I think it’s perfectly alright [sic] for them to testify if they want to, or not. It’s their business.
“Each defendant said he wants to testify, and there will be no cross-examination of these witnesses, just a direct examination by you.
“MR. HALL: Your Honor, I can’t even put them on direct examination because if I ask them—
“THE COURT: (Interposing) You can just put them on the stand and tell the Court that you have advised them of their rights and they want to testify; then you tell the man to go ahead and relate what he wants to. That’s all you need to do.”

Holloway took the stand on his own behalf, testifying that during the time described as the time of the robbery he was at his brother’s home. His brother had previously given similar testimony. When Welch took the witness stand, the record shows Hall advised him, as he had Holloway, that “I cannot ask you any questions that might tend to incriminate any one of the three of you .... Now, the only thing I can say is tell these ladies and gentlemen of the jury what you know about this case . . . .” Welch responded that he did not “have any kind of speech ready for the jury or anything. I thought I was going to be questioned.” When Welch denied, from the witness stand, that he was at the restaurant the night of the robbery, Holloway interrupted, asking:

“Your Honor, are we allowed to make an objection?
“THE COURT: No, sir. Your counsel will take care of any objections.
“MR. HALL: Your Honor, that is what I am trying to say. I can’t cross-examine them.
“THE COURT: You proceed like I tell you to, Mr. Hall. You have no right to cross-examine your own witnesses anyhow.”

Welch proceeded with his unguided direct testimony, denying any involvement in the crime and stating that he was at his home at the time it occurred. Campbell gave .similar testimony when he took the stand. He also denied making any confession to the arresting officers.

The jury rejected the versions of events presented by the three defendants and the alibi witness, and returned guilty verdicts on all counts. On appeal to the Arkansas Supreme Court, petitioners raised the claim that their representation by a single appointed attorney, over their objection, violated federal constitutional guarantees of effective assistance of counsel. In resolving this issue, the court relied on what it characterized as the majority rule:

“[T]he record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants.” 260 Ark. 250, 256, 539 S. W. 2d 435, 439 (1977).

Turning to the record in the case, the court observed that Hall had failed to outline to the trial court both the nature of the confidential information received from his clients and the manner in which knowledge of that information created conflicting loyalties. Because none of the petitioners had incriminated codefendants while testifying, the court concluded that the record demonstrated no actual conflict of interests or prejudice to the petitioners, and therefore affirmed.

II

More than 35 years ago, in Glasser v. United States, 315 U. S. 60 (1942), this Court held that by requiring an attorney to represent two codefendants whose interests were in conflict the District Court had denied one of the defendants his Sixth Amendment right to the effective assistance of counsel. In that case the Government tried five codefendants in a joint trial for conspiracy to defraud the United States. Two of the defendants, Glasser and Kretske, were represented initially by separate counsel. On the second day of trial, however, Kretske became dissatisfied with his attorney and dismissed him. The District Judge thereupon asked Glasser’s attorney, Stewart, if he would also represent Kretske. Stewart responded by noting a possible conflict of interests: His representation of both Glasser and Kretske might lead the jury to link the two men together. Glasser also made known that he objected to the proposal. The District Court nevertheless appointed Stewart, who continued as Glasser’s retained counsel, to represent Kretske. Both men were convicted.

Glasser contended in this Court that Stewart’s representation at trial was ineffective because of a conflict between the interests of his two clients. This Court held that “the ‘assistance of counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer should simultaneously represent conflicting interests.” Id., at 70. The record disclosed that Stewart failed to cross-examine a Government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. This failure was viewed by the Court as a result of Stewart’s desire to protect Kretske’s interests, and was thus “indicative of Stewart’s struggle to serve two masters . . . .” Id., at 75. After identifying this conflict of interests, the Court declined to inquire whether the prejudice flowing from it was harmless and instead ordered Glasser’s conviction reversed. Kretske’s conviction, however, was affirmed.

One principle applicable here emerges from Glasser without ambiguity. Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter’s view: “Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.” Glasser v. United States, supra, at 92 (dissenting opinion).

Since Glasser was decided, however, the courts have taken divergent approaches to two issues commonly raised in challenges to joint representation where — unlike this case — trial counsel did nothing to advise the trial court of the actuality or possibility of a conflict between his several clients’ interests. First, appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defendants were deprived of their right to the effective assistance of counsel. Compare United States ex rel. Hart v. Davenport, 478 F. 2d 203 (CA3 1973); Lollar v. United States, 126 U. S. App. D. C. 200, 376 F. 2d 243 (1967); People v. Chacon, 69 Cal. 2d 765, 447 P. 2d 106 (1968); and State v. Kennedy, 8 Wash. App. 633, 508 P. 2d 1386 (1973), with United States v. Lovano, 420 F. 2d 769, 773 (CA2 1970); see also cases collected in Annot., 34 A. L. R. 3d 470, 477-507 (1970). Second, courts have differed with respect to the scope and nature of the affirmative duty of the trial judge to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests. Compare United States v. Lawriw, 568 F. 2d 98 (CA8 1977); United States v. Carrigan, 543 F. 2d 1053 (CA2 1976); and United States v. Foster, 469 F. 2d 1 (CA1 1972), with Foxworth v. Wainwright, 516 F. 2d 1072 (CA5 1975), and United States v. Williams, 429 F. 2d 158 (CA8 1970).

We need not resolve these two issues in this case, however. Here trial counsel, by the pretrial motions of August 13 and September 4 and by his accompanying representations, made as an officer of the court, focused explicitly on the probable risk of a conflict of interests. The judge then failed either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel. We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of “assistance of counsel.”

This conclusion is supported by the Court’s reasoning in Glasser:

“Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel. . . .
“Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.” 315 U. S., at 71, 76 (emphasis added).

This reasoning has direct applicability in this case where the “possibility of [petitioners’] inconsistent interests” was “brought home to the court” by formal objections, motions, and defense counsel’s representations. It is arguable, perhaps, that defense counsel might have presented the requests for appointment of separate counsel more vigorously and in greater detail. As to the former, however, the trial court’s responses hardly encouraged pursuit of the separate-counsel claim; and as to presenting the basis for that claim in more detail, defense counsel was confronted with a risk of violating, by more disclosure, his duty of confidentiality to his clients.

Additionally, since the decision in Glosser, most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. See, e. g., Shuttle v. Smith, 296 F. Supp. 1315 (Vt. 1969); State v. Davis, 110 Ariz. 29, 514 P. 2d 1025 (1973); State v. Brazile, 226 La. 254, 75 So. 2d 856 (1954); but see Commonwealth v. LaFleur, 1 Mass. App. 327, 296 N. E. 2d 517 (1973). In so holding, the courts have acknowledged and given effect to several interrelated considerations. An “attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” State v. Davis, supra, at 31, 514 P. 2d, at 1027. Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. Ibid. Finally, attorneys are officers of the court, and “ ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” State v. Brazile, supra, at 266, 75 So. 2d, at 860-861. (Emphasis deleted.) We find these considerations persuasive.

The State argues, however, that to credit Hall’s representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State’s view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their “authority,” presumably for purposes of delay or obstruction of the orderly conduct of the trial.

The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court’s ability to deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F. 2d 316 (CA2), cert. denied, 379 U. S. 845 (1964); People v. Kroeger, 61 Cal. 2d 236, 390 P. 2d 369 (1964). Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. See State v. Davis, supra. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections, and representations made to it, and no prospect of dilatory practices was present to justify that failure.

Ill

The issue remains whether the error committed at petitioners’ trial requires reversal of their convictions. It has generally been assumed that Glasser requires reversal, even in the absence of a showing of specific prejudice to the complaining codefendant, whenever a trial court improperly permits or requires joint representation. See Austin v. Erickson, 477 F. 2d 620 (CA8 1973); United States v. Gougis, 374 F. 2d 758 (CA7 1967); Hall v. State, 63 Wis. 2d 304, 217 N. W. 2d 352 (1974); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A. 2d 641 (1962); Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo. L. J. 369, 387 (1969). Some courts and commentators have argued, however, that appellate courts should not reverse automatically in such cases but rather should affirm unless the defendant can demonstrate prejudice. See United States v. Woods, 544 F. 2d 242 (CA6 1976), cert, denied, 430 U. S. 969 (1977); Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 122-125 (1978). This argument rests on two aspects of the Court’s decision in Glasser. First, although it had concluded that Stewart was forced to represent conflicting interests, the Court did not reverse the conviction of Kretske, Stewart’s other client, because Kretske failed to “show that the denial of Glasser’s constitutional rights prejudiced [him] in some manner.” 315 U. S., at 76 (emphasis added). Second, the Court justified the reversal of Glasser’s conviction, in part, by emphasizing the weakness of the Government’s evidence against him; with guilt a close question, “error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial, since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt.” Id., at 67 (emphasis added). Assessing the strength of the prosecution’s evidence against the defendant is, of course, one step in applying a harmless-error standard. See Schneble v. Florida, 405 U. S. 427 (1972); Harrington v. California, 395 U. S. 250 (1969).

We read the Court’s opinion in Glasser, however, as holding that whenever a trial court improperly requires joint representation over timely objection reversal is automatic. The Glasser Court stated: This language presupposes that the joint representation, over his express objections, prejudiced the accused in some degree. But from the cases cited it is clear that the prejudice is presumed regardless of. whether it was independently shown. Tumey v. Ohio, 273 U. S. 510 (1927), for example, stands for the principle that “[a] conviction must be reversed if [the asserted trial error occurred], even if no particular prejudice is shown and even if the defendant was clearly guilty.” Chapman v. California, 386 U. S. 18, 43 (1967) (Stewart, J., concurring); see also id., at 23, and n. 8 (opinion of the Court). The Court’s refusal to reverse Kretske’s conviction is not contrary to this interpretation of Glosser. Kretske did not raise his own Sixth Amendment challenge to the joint representation. 315 U. S., at 77; see Brief for Petitioner Kretske in Glasser v. United States, O. T. 1941, No. 31. As the Court’s opinion indicates, some of the codefendants argued that the denial of Glasser’s right to the effective assistance of counsel prejudiced them as alleged co-conspirators. 315 U. S., at 76-77. In that context, the Court required a showing of prejudice; finding none, it affirmed the convictions of the codefendants, including Kretske.

“To determine the precise degree of prejudice sustained by Glasser as a result of the [district] court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U. S. 97, 116; Tumey v. Ohio, 273 U. S. 510, 535; Patton v. United States, 281 U. S. 276, 292.” 315 U. S., at 75-76.

Moreover, this Court has concluded that the assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, supra, at 23. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U. S. 335 (1963); Hamilton v. Alabama, 368 U. S. 52 (1961); White v. Maryland, 373 U. S. 59 (1963).

That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from this general rule. Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. Examples can be readily multiplied. The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.

Finally, a rule requiring a defendant to show that a conflict of interests — which he and his counsel tried to avoid by timely objections to the joint representation — prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. Compare Chapman v. California, supra, at 24-26, with Hamling v. United States, 418 U. S. 87, 108 (1974), and United States v. Valle-Valdes, 554 F. 2d 911, 914-917 (CA9 1977). But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.

Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Powell,

with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.

While disavowing a per se rule of separate representation, the Court holds today that the trial judge’s failure in this case “either to appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel” worked a violation of the guarantee of “assistance of counsel” embodied in the Sixth and Fourteenth Amendments. The Court accepts defense counsel’s representations of a possible conflict of interests among his clients and of his inability to conduct effective cross-examination as being adequate to trigger the trial court’s duty of inquiry. The trial court should have held an appropriate hearing on defense counsel’s motions for separate representation, but our task is to decide whether this omission assumes the proportion of a constitutional violation. Because I cannot agree that, in the particular circumstances of this case, the court’s failure to inquire requires reversal of petitioners’ convictions, and because the Court’s opinion contains seeds of a per se rule of separate representation merely upon the demand of defense counsel, I respectfully dissent.

I

It is useful to contrast today’s decision with the Court’s most relevant previous ruling, Glasser v. United States, 315 U. S. 60 (1942). In that case, the trial court ordered Glasser’s retained lawyer, Stewart, to represent both Glasser and his codefendant, Kretske, even though Stewart had identified “inconsistency in the defense” that counseled against joint representation. Id., at 68. This Court reversed Glasser’s conviction because his lawyer had been required to undertake simultaneous representation of “conflicting interests.” Id., at 70. The Glasser decision did not rest only on the determination that “[t]he possibility of the inconsistent interests of Glasser and Kretske [had been] brought home to the court. . . .” Id., at 71. Instead, the Court proceeded to find record support for Glasser’s claim of “impairment” of his Sixth Amendment right to assistance of counsel. The evidence “indicative of Stewart’s struggle to serve two masters '[could not] seriously be doubted.” Id., at 75; see also id., at 76.

Today’s decision goes well beyond the limits of Glasser. I agree that the representations made by defense counsel in this case, while not as informative as the affidavit of counsel Stewart in Glasser, were sufficient to' bring into’ play the trial court’s duty to inquire further into the possibility of “conflicting interests.” I question, however, whether the Constitution is violated simply by the failure to conduct that inquiry, without any additional determination that the record reveals a case of joint representation in the face of “conflicting interests.” The Court’s approach in this case is not premised on an ultimate finding of conflict of interest or ineffective assistance of counsel. Rather, it presumes prejudice from the failure to conduct an inquiry, equating that failure with a violation of the Sixth Amendment guarantee. The justification for this approach appears to be the difficulty of a post hoc reconstruction of the record to determine whether a different outcome, or even a different defense strategy, might have obtained had the trial court engaged in the requisite inquiry and ordered separate representation. Although such difficulty may be taken into account in the allocation of the burden of persuasion on the questions of conflict and prejudice, see infra, at 495-496,1 am not convinced of the need for a prophylactic gloss on the requirements of the Constitution in this area of criminal law. Cf. Miranda v. Arizona, 384 U. S. 436 (1966).

Several other aspects of the Court’s opinion suggest a rule of separate representation upon demand of defense counsel. The Court leaves little room for maneuver for a trial judge who seeks to inquire into the substantiality of the defense counsel’s representations. Apparently, the trial judge must order separate representation unless the asserted risk of conflict “was too remote to warrant separate counsel,” ante, at 484, a formulation that suggests a minimal showing on the part of defense counsel. The Court also offers the view that defense counsel in this case could not be expected to make the kind of specific proffer that was present in Glasser because of “a risk of violating, by more disclosure, his duty of confidentiality to his clients. ” Ante, at 485. Although concededly not necessary to a decision in this case, the Court then states that the trial court’s inquiry must be conducted “without improperly requiring disclosure of the confidential communications of the client.” Ante, at 487, and n. II. When these intimations are coupled with the Court’s policy of automatic reversal, see ante, at 488-489, the path may have been cleared for potentially disruptive demands for separate counsel predicated solely on the representations of defense counsel.

II

Recognition of the limits of this Court’s role in adding protective layers to the requirements of the Constitution does not detract from the Sixth Amendment obligation to provide separate counsel upon a showing of reasonable probability of need. In my view, a proper accommodation of the interests of defendants in securing effective assistance of counsel and that of the State in avoiding the delay, potential for disruption, and costs inherent in the appointment of multiple counsel, can be achieved by means which sweep less broadly than the approach taken by the Court. I would follow the lead of the several Courts of Appeals that have recognized the trial court’s duty of inquiry in joint-representation cases without minimizing the constitutional predicate of “conflicting interests.”

Ordinarily defense counsel has the obligation to raise objections to joint representation as early as possible before the commencement of the trial. When such a motion is made, supported by a satisfactory proffer, the trial court is under a duty to conduct “the most careful inquiry to satisfy itself that no conflict of interest would be likely to result and that the parties involved had no valid objection.” United States v. DeBerry, 487 F. 2d 448, 453 (CA2 1973). At that hearing, the burden is on defense counsel, because his clients are in possession of the relevant facts, to make a showing of a reasonable likelihood of conflict or prejudice. Upon such a showing, separate counsel should be appointed. “If the court has carried out this duty of inquiry, then to the extent a defendant later attacks his conviction on grounds of conflict of interest arising from joint representation he will bear a heavy burden indeed of persuading” the reviewing court “that he was, for that reason, deprived of a fair trial.” United States v. Foster, 469 F. 2d 1, 5 (CA1 1972). If, however, a proper and timely motion is made, and no hearing is held, “the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government.” United States v. Carrigan, 543 F. 2d 1053, 1056 (CA2 1976).

Since the trial judge in this case failed to inquire into the substantiality of defense counsel’s representations of September 4,1975, ante, at 484 n. 7, the burden shifted to the State to establish the improbability of conflict or prejudice. I agree that the State’s burden is not met simply by the assertion that the defenses of petitioners were not mutually inconsistent, for that is not an infrequent consequence of improper joint representation. Nevertheless, the record must offer some basis for a reasonable inference that “conflicting interests” hampered a potentially effective defense. See, e. g., United States v. Donahue, 560 F. 2d 1039, 1044-1045 (CA1 1977). Because the State has demonstrated that such a basis cannot be found in the record of this case, I would affirm the judgment of the Supreme Court of Arkansas.

       No transcript of this hearing is included in the record, and we are not informed whether the hearing was transcribed.

       See Jackson v. Denno, 378 U. S. 368 (1964).

       It is probable that the judge’s response, “I don’t know why you wouldn’t,” referred back to counsel’s statement, “I will not be able to cross-examine them . . . .” If the response is so read, the judge’s later statements, see infra, at 479 and 480, .are directly contradictory.

       The record reveals that both the trial court and defense counsel were alert to defense counsel’s obligation to avoid assisting in the presentation of what counsel had reason to believe was false testimony, or, at least, testimony contrary to the version of facts given to him earlier and in confidence. Cf. ABA Project on Standards Relating to the Administration of Criminal Justice, The Defense Function § 7.7 (c), p. 133 (1974).

       By inquiring in Glasser whether there had been a waiver, the Court also confirmed that a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests. 315 U. S., at 70. In this case, however, Arkansas does not contend that petitioners waived that right.

       See ABA Project on Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge § 3.4 (b), p. 171 (1974):
      “Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel.”

       There is no indication in the record, and the State does not suggest, that the hearing held in response to the motion of August 13 disclosed information demonstrating the insubstantiality of Hall’s September 4 representations — based, as nearly as can be ascertained, on the codefendants’ newly formed decision to testify — respecting a probable conflict of interests. So far as we can tell from this record, the trial judge cut off any opportunity of defense counsel to do more than make conclusory representations. During oral argument in this Court, Hall represented that the trial court did not request him to disclose the basis for his representations as to a conflict of interests. See Tr. of Oral Arg. 14r-15.

      There is no occasion in this case to determine the constitutional significance, if any, of the trial court’s response to petitioners’ midtrial objections.

       The American Bar Association in its Standards Relating to the Administration of Criminal Justice, The Defense Function § 3.5(b), p. 123 (1974) cautions:
      “Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who. are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to. one of the defendants may conflict with the duty to. another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to. develop and when the several defendants give an informed consent to such multiple representation.”

       When a considered representation regarding a conflict in clients’ interests comes from an officer of the court, it should be given the weight commensurate with the grave penalties risked for misrepresentation.

       Such risks are undoubtedly present; they are inherent in the adversary system. But courts have abundant power to deal with attorneys who misrepresent facts.

       This case does not require an inquiry into the extent of a court’s power to compel an attorney to disclose confidential communications that he concludes would be damaging to his client. Cf. ABA Code of Professional Responsibility, HR 4AL01 (C) (2) (1969). Such compelled disclosure creates significant risks of unfair prejudice, especially when the disclosure is to a judge who may be called upon later to impose sentences on the attorney’s clients.

       I do not propose to resolve here the tension between the assertion of a constitutional right and a claim of lawyer-client privilege. But I reject the assumption that defense counsel will be unable to discuss in concrete terms the difficulties of joint representation in a particular case without betraying confidential communications. Nor am I persuaded that the courts will be unable to pursue a meaningful inquiry without insisting on a breach of confidentiality. Experience in the somewhat analogous area of claims of exemption from the disclosure requirements of the Freedom of Information Act, 5 U. S. C. § 552 (1976 ed.), supports this point. See, e. g., EPA v. Mink, 410 U. S. 73, 92-94 (1973); Vaughn v. Rosen, 157 U. S. App. E. C. 340, 484 F. 2d 820 (1973), cert. denied, 415 U. S. 977 (1974).

       Each addition of a lawyer in the trial of multiple defendants presents increased opportunities for delay in setting the trial date, in disposing of pretrial motions, in selecting the jury, and in the conduct of the trial itself. Additional lawyers also may tend to enhance the possibility of trial errors. Moreover, in light of professional canons of ethics, cf. ABA Code of Professional Responsibility, DR 5-105 (D) (1969); Allen v. District Court, 184 Colo. 202, 205-206, 519 P. 2d 351, 353 (1974); Tr. of Oral Arg. 6-7, 15-16, a rule requiring separate counsel virtually upon demand may disrupt the operation of public defender offices.

       See, e. g., United States v. Carrigan, 543 F. 2d 1053, 1055-1056 (CA2 1976):
      “The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation, must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. United States v. Mari, , . . 526 F. 2d [117,] 119 [(CA2 1975)]; United States v. Vowteras, 500 F. 2d 1210, 1211 (2d Cir.), cert. denied, 419 U. S. 1069 . . . (1974); United States v. Wisniewski, 478 F. 2d 274, 281 (2d Cir. 1973); United States v. Lovano, 420 F. 2d 769, 773 (2d Cir.), cert. denied, 397 U. S. 1071 .. . (1970). In all of these cases the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the defendants involved. Here the record is barren of any inquiry by the court or any concern by the Government.
      “In United States v. DeBerry, swpra, 487 F. 2d, at 453-54, we .. . noted with approval the view of the First Circuit in United States v. Foster, 469 F. 2d 1, 5 (1st Cir. 1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government. 487 F. 2d at 453 n. 6.”

       Since a proper, timely objection was interposed in this case, there is no occasion to identify the circumstances which might trigger a duty of inquiry in the absence of such a motion.
      Of course, a later motion may be appropriate if the conflict is not known or does not become apparent before trial proceeds. To guard against strategic disruption of the trial, however, the court may require a substantial showing of justification for such midtrial motions.

       It is unlikely that separate counsel would have been able to develop an independent defense in this case because of the degree of overlap in the identification testimony by the State’s witnesses and because of the consistency of the alibis advanced by petitioners. Campbell and Welch, who are half brothers, both used the same alibi. Since Campbell was not identified as an actual participant in the rapes, it might be argued that separate counsel would have encouraged him to endorse his earlier confession in an effort to show that he was less culpable than his two codefendants. But, given his common alibi with Welch, Campbell would have found it difficult to extricate himself from his half brother’s cause. In any event, such an argument would have been an appeal to jury nullification because, as the court below noted, Campbell’s denial of direct involvement in the rapes “had no effect on his guilt as a principal.” 260 Ark. 250, 256, 539 S. W. 2d 435, 439 (1976). Conceivably Holloway, who gave an independent alibi, might have wished to argue that while the State had apprehended two of the real culprits, his arrest was due to a mistaken identification. It is most unlikely that separate counsel would have succeeded on such a tack because each witness who identified Holloway also identified one of the other two codefendants. Moreover, petitioners do not argue in this Court that joint representation impeded effective cross-examination of the State’s witnesses. In sum, this is not a case where an inquiry into the possibility of “conflicting interests” reasonably might have revealed a basis for separate representation.


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Stewart, Mr. Justice Powell,

license: Public Domain

text:
    MALONE, COMMISSIONER OF LABOR AND INDUSTRY FOR MINNESOTA v. WHITE MOTOR CORP. et al.
    No. 76-1184.
    Argued January 10, 1978
    Decided April 3, 1978

      White, J., delivered the opinion of the Court, in which Marshall, Rehnquist, and Stevens, JJ., joined. Stewart, J., post, p. 515, and Powell, J., post, p. 516, filed dissenting opinions, in which Burger, C. J., joined. Brennan and Blackmun, JJ., took no part in the consideration or decision of the case.

      Richard B. Allyn, Solicitor General of Minnesota, argued the cause for appellant. With him on the briefs were Warren Spannaus, Attorney General, and Kent G. Harbison, Richard A. Lockridge, and Jon K. Murphy, Special Assistant Attorneys General.

      Frank C. Heath argued the cause for appellees. With him on the brief were Curtis L. Roy, Erwin Griswold, and John L. Strauch.

      Allan A. Rycrn, Jr., argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General McCree. John S. Irving, Carl L. Taylor, Norton J. Come, Linda Sher, and David S. Fishback.

        Peter G. Nash, Eugene B. Granof, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.

        J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

A Minnesota statute, the Private Pension Benefits Protection Act, Minn. Stat. § 181B.01 et seq. (1976) (Pension Act), passed in April 1974, established minimum standards for the funding and vesting of employee pensions. The question in this case is whether this statute, which since January 1, 1975, has been pre-empted by the federal Employee Retirement Income Security Act of 1974 (ERISA), was pre-empted prior to that time by federal labor policy insofar as it purported to override or control the terms of collective-bargaining agreements negotiated under the National Labor Relations Act (NLRA). A Federal District Court held that it was not, 412 F. Supp. 372 (Minn. 1976), but the Court of Appeals for the Eighth Circuit disagreed and held the Pension Act invalid. 545 F. 2d 599 (1976). Because the case fell within our mandatory appellate jurisdiction pursuant to 28 U. S. C. § 1254 (2), we noted probable jurisdiction. 434 U. S. 813. We reverse.

I

In 1963, White Motor Corp. and its subsidiary, White Farm Equipment Co. (hereafter collectively referred to as appellee), purchased from another company two farm equipment manufacturing plants, located in Hopkins, Minn., and Minneapolis, Minn, (on Lake Street). The employees at these plants, represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), were covered by a pension plan established through collective bargaining.

Under the 1971 collective-bargaining contract, the Pension Plan provided that an employee who attained the age of 40 and completed 10 or more years of credited service with the company was entitled to a pension. The amount of the pension would depend upon the age at which the employee retired. In language unchanged since 1950, the 1971 Plan provided that “ [p] ensions shall be payable only from the Fund, and rights to pensions shall be enforceable only against the Fund.” App. 155. The Plan, however, was to be funded in part on a deferred basis. The unpaid past service liability— the excess of accrued liability over the present value of the assets of the Fund — was to be met through contributions by the employer from its continuing operations.

Section 10.02 of the Plan provided that “[t]he Company shall have the sole right at any time to terminate the entire plan.” During the 1968 and 1971 negotiations, however, the UAW obtained from appellee guarantees that, upon termination, pensions for those entitled to them would remain at certain designated levels, though lower than those specified in the Plan. By virtue of these guarantees, appellee assumed a direct liability for pension payments amounting to $7 million above the assets in the Fund.

Appellee exercised its contractual right to terminate the Pension Plan on May 1, 1974. A few weeks before, however, the Pension Act had been enacted. This statute imposed “a pension funding charge” directly against any employer who ceased to operate a place of employment or a pension plan. This charge would be sufficient to insure that all employees with 10 or more years of service would receive whatever pension benefits had accrued to them, regardless of whether their rights to those benefits had “vested” within the terms of the Plan. The funds obtained through the pension funding charge would then be used to purchase an annuity payable to the employee when he reached normal retirement age. Although the Pension Act did not compel an employer to adopt or continue a pension plan, it did guarantee to employees with 10 or more years’ service full payment of their accrued pension benefits.

Pursuant to the Pension Act, the appellant, Commissioner of Labor and Industry of the State of Minnesota, undertook an investigation of the pension plan termination here involved and later certified that the sum necessary to achieve compliance with the Pension Act was $19,150,053. Under the Pension Act, a pension funding charge in this amount became a lien on the assets of appellee. Appellee promptly filed this suit in Federal District Court.

Appellee’s complaint, as amended, asserted violations of the Supremacy Clause, the Contract Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Supremacy. Clause claim was based on the argument that the Pension Act was in conflict with several provisions of the NLRA, as amended, 29 U. S. C. § 151 et seq., because it “interferes with the right of Plaintiffs to free collective bargaining under federal law and . . . vitiates collective bargaining agreements entered into under the authority of federal law, by imposing upon Plaintiffs obligations which, by the express terms of such collective bargaining agreements, Plaintiffs were not required to assume.” App. A-9 — A-10. Appellee moved for partial summary judgment or, alternatively, for a preliminary injunction based on the pre-emption claim.

Distinguishing Teamsters v. Oliver, 358 U. S. 283 (1959), and relying on evidence of congressional intent contained in the federal Welfare and Pension Plans Disclosure Act (Disclosure Act), 72 Stat. 997, as amended, 76 Stat. 35, 29 U. S. C. § 301 et seq., the District Court held that the Pension Act was not pre-empted by federal law. 412 P. Supp. 372 (Minn. 1976). On appeal, the Court of Appeals for the Eighth Circuit held that the Pension Act was pre-empted by federal labor law, and reversed the District Court. 545 P. 2d 599 (1976). The reason was that the Pension Act purported to override the terms of the existing pension plan, arrived at through collective bargaining, in at least three ways: It granted employees vested rights not available under the pension plan; to the extent of any deficiency in the pension fund, it required payment from the general assets of the employer, while the pension plan provided that benefits shall be paid only out of the pension fund; and the Pension Act imposed liability for post-termination payments to the pension fund beyond those specifically guaranteed.- This, the court ruled, the State could not do; for if, under Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), “states cannot control the economic weapons of the parties at the bargaining table, a fortiori, they may not directly control the substantive terms of the contract which results from that bargaining.” 545 F. 2d, at 606. Further, as the court understood the opinion in Oliver, supra, “a state cannot modify or change an otherwise valid and effective provision of a collective bargaining agreement.” 545 F. 2d, at 608. Finally, the Court of Appeals found that the pre-emption disclaimer in the Disclosure Act relied on by the District Court related only

“to state statutes governing those obligations of trust undertaken by persons managing, administrating or operating employee benefit funds, the violation of which gives rise to civil and criminal penalties. Accordingly, no warrant exists for construing this legislation to leave to a state the power to change substantive terms of pension plan agreements.” Id., at 609.

II

It is uncontested that whether the Minnesota statute is invalid under the Supremacy Clause depends on the intent of Congress. “The purpose of Congress is the ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Often Congress does not clearly state in its legislation whether it intends to pre-empt state laws; and in such instances, the courts normally sustain local regulation of the same subject matter unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States. Ray v. Atlantic Richfield Co., ante, at 157-158; Jones v. Rath Packing Co., 430 U. S. 519, 525, 540-541 (1977); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). “We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers and unions; obviously, much of this is left to the States.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 289 (1971). The Pension Act “leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.” Garner v. Teamsters, 346 U. S. 485, 488 (1953). Here, the Court of Appeals concluded that the Minnesota statute was invalid because it trenched on what the court considered to be subjects that Congress had committed for determination to the collective-bargaining process.

There is little doubt that under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA, including those sections on which appellee relies, which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining. If the Pension Act is pre-empted here, the congressional intent to do so must be implied from the relevant provisions of the labor statutes. We have concluded, however, that such implication should not be made here and that a far more reliable indicium of congressional intent with respect to state authority to regulate pension plaps is to be found in § 10 of the Disclosure Act. Section 10.(b) provided:

“The provisions of this Act, except subsection (a) of this section and section 13 and any action taken thereunder, shall not be held to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of the United States or of any State affecting the operation or administration of employee welfare or pension benefit plans, or in any manner to authorize the operation or administration of any such plan contrary to any such law.”

Also, § 10 (a), after shielding an employer from duplicating state and federal filing requirements, makes clear that other state laws remained unaffected:

“Nothing contained in this subsection shall be construed to prevent any State from obtaining such additional information relating to any such plan as it may desire, or from otherwise regulating such plan.”

Contrary to the Court of Appeals, we believe that the foregoing provisions, together with the legislative history of the 1958 Disclosure Act, clearly indicate that Congress at that time recognized and preserved state authority to regulate pension plans, including those plans which were the product of collective bargaining. Because the 1958 Disclosure Act was in effect at the time of the crucial events in this case, the expression of congressional intent included therein should control the decision here.

Congressional consideration of the problems in the pension field began in 1954, after the President sent a message to Congress recommending that

“Congress initiate a thorough study of welfare and pension funds covered by collective bargaining agreements, with a view of enacting such legislation as will protect and conserve these funds for the millions of working men and women who are the beneficiaries.”

In the next four years, through hearings, studies, and investigations, a Senate Subcommittee canvassed the problems of the nearly unregulated pension field and possible solutions to them. Although Congress turned up extensive evidence of kickbacks, embezzlement, and mismanagement, it concluded:

“The most serious single weakness in this private social insurance .complex is not in the abuses and failings enumerated above. Overshadowing these is the too frequent practice of withholding from those most directly affected, the employee-beneficiaries, information which will permit them to determine (1) whether the program is being administered efficiently and equitably, and (2) more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.” S. Rep. No. 1440, 85th Cong., 2d Sess., 12 (1958) (hereinafter S. Rep.).

As a first step toward protection of the workers’ interests in their pensions, Congress enacted the 1958 Disclosure Act. The statute required plan administrators to file with the Labor Department and make available upon request both a description of the plan and an annual report containing financial information. In the case of a plan funded through a trust, the annual report was to include, inter alia,

“the type and basis of funding, actuarial assumptions used, the amount of current and past service liabilities, and the number of employees both retired and nonretired covered by the plan . . .

as well as a valuation of the assets of the fund.

The statute did not, however, prescribe any substantive rules to achieve either of the two purposes described above. The Senate Report explained:

“[T]he legislation proposed is not a regulatory statute. It is a disclosure statute and by design endeavors to leave regulatory responsibility to the States.” S. Rep. 18.

This objective was reflected in §§ 10 (a) and 10 (b), quoted above. As the Senate Report explained, the statute was designed “to leave to the States the detailed regulations relating to insurance, trusts and other phases of their operations.” S. Rep. 19. There was “no desire to get the Federal Government involved in the regulation of these plans but a disclosure statute which is administered in close cooperation with the States could also be of great assistance to the States in carrying out their regulatory functions.” Id., at 18.

There is also no doubt that the Congress which adopted the Disclosure Act recognized that it was legislating with respect to pension funds many of which had been established by collective bargaining. The message from the President which had prompted the original inquiry had focused on the need to protect workers “covered by collective bargaining agreements.” The problems that Congress had identified were characteristic of bargained-for plans as well as of others. The Reports of both the Senate and House Committees explained that pension funds were frequently established through the collective-bargaining process. S. Rep. 8; H. R. Rep. No. 2283, 85th Cong., 2d Sess., 9 (1958) (hereinafter H. R. Rep.). The Senate Report emphasized the need for protection even where the plan was incorporated in a collective-bargaining agreement. S. Rep. 4, 8, 14. Congressmen explaining the bill on the floor also made clear that the bill would apply to pension plans “whether or not they have been brought into existence through collective bargaining.” 104 Cong. Rec. 16420 (1958) (remarks of Cong. Lane); id., at 16425 (remarks of Cong. Wolverton); see id., at 7049-7052 (remarks of Sen. Kennedy). Indeed, the bill met opposition in both the Senate and the House on the ground that its approach would “require employers to surrender to labor unions economic and bargaining power which should be negotiated through the normal channels of collective bargaining.” S. Rep. 34 (minority view of Sen. Allott); accord, H. R. Rep. 25 (minority views). Yet neither the bill as enacted nor its legislative history drew a distinction between collectively bargained and all other plans, either with regard to the disclosure role of the federal legislation or the regulatory functions that would remain with the States.

Appellee argues that the Disclosure Act’s allocation of regulatory responsibility to the States is irrelevant here because the Disclosure Act was “enacted to deal with corruption and mismanagement of funds.” Brief for Appellees 36. We think that the appellee advances an excessively narrow view of the legislative history. Congress was concerned not only with corruption, but also with the possibility that honestly managed pension plans would be terminated by the employer, leaving the employees without funded pensions at retirement age.

The Senate Report specifically stated: “Entirely aside from abuses or violations, there are compelling reasons why there should be disclosure of the financial operation of all types of plans.” S. Rep. 16. The Report then reproduced a chart showing the number of pension plans registered with the Internal Revenue Service that had been terminated during a 2-month period. Ibid. The Senate Committee also observed: “Trusteed pension plans commonly limit benefits, even though fixed, to what can be paid out of the funds in the pension trust.” Id., at 15. As an illustration, the Report quoted language from a collectively bargained pension plan disclaiming any liability of the company in the event of termination. Ibid. The Senate Report also showed an awareness of the problems posed by vesting requirements and expressed concern that “employees whose rights do not mature within such contract period must rely upon the expectation that their union will be able to renew the contract or negotiate a similar one upon its termination.” Id., at 8. Thus, Congress was concerned with many of the same issues as are involved in this case — unexpected termination, inadequate funding, unfair vesting requirements. In preserving generally state laws “affecting the operation or administration of employee welfare or pension benefit plans,” 72 Stat. 1003, Congress indicated that the States had and were to have authority to deal with these problems.

Moreover, it should be emphasized that § 10 of the Disclosure Act referred specifically to the “future,” as well as “present” laws of the States. Congress was aware that the States had thus far attempted little regulation of pension plans. The federal Disclosure Act was envisioned as laying a foundation for future state regulation. The Congress sought “to provide adequate information in disclosure legislation for possible later State . . . regulatory laws.” H. R. Rep. 2. Senator Kennedy, a manager of the bill, explained to his colleagues:

“The objective of the bill is to provide more adequate protection for the employee-beneficiaries of these plans through a uniform Federal disclosure act which will . . . make the facts available not only to. the participants and the Federal Government but to the States, in order that any desired State regulation can be more effectively accomplished.” 104 Cong. Rec. 7050 (1958).

See also S. Rep. 18.. Senator Kennedy had “no doubt that this [was] an area in which the States [were] going to begin to move.” 104 Cong. Rec. 7053 (1958).

The aim of the Disclosure Act was perhaps best summarised by Senator Smith, the ranking Republican on the Senate Committee and a supporter of the bill. He stated:

“It seems to be the policy of the pending legislation to extend beyond the problem of corruption. As stated in the language of the bill, one of its aims is to make available to the employee-beneficiaries information which will permit them to determine, first, whether the program is being administered efficiently and equitably; and, second, more importantly, whether or not the assets and prospective income of the programs are sufficient to guarantee the benefits which have been promised to them.
“This present bill provides for far more than anti-corruption legislation directed against the machinations of dishonest men who betray their trust. Rather, it inaugurates a new social policy of accountability. . . .
“This policy could very well lead to the establishment of mandatory standards by which these plans must be governed.” Id., at 7517.

It is also clear that Congress contemplated that the primary responsibility for developing such “mandatory standards” would lie with the States.

Although Congress came to a quite different conclusion in 1974 when ERISA was adopted, the 1958 Disclosure Act clearly anticipated a broad regulatory role for the States. In light of this history, we cannot hold that the Pension Act is nevertheless implicitly pre-empted by the collective-bargaining provisions of the NLRA. Congress could not have intended that bargained-for plans, which were among those that had given rise to the very problems that had so concerned Congress, were to be free from either state or federal regulation insofar as their substantive provisions were concerned. The Pension Act seeks to protect the accrued benefits of workers in the event of plan termination and to insure that' the assets and prospective income of the plan are sufficient to guarantee the benefits promised — exactly the kind of problems which the 85th Congress hoped that the States would solve.

This conclusion is consistent with the Court’s decision in Teamsters v. Oliver, 358 U. S. 283 (1959), which concerned a claimed conflict between a state antitrust law and the terms of a collective-bargaining agreement specially adapted to the trucking business. The agreement prescribed a wage scale for truckdrivers and, in order to prevent evasion, provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed wage, a stated minimum rental for the use of their vehicles. An Ohio court had invalidated this portion of the collective-bargaining agreement under Ohio antitrust law. This Court reversed, noting that “[t]he application [of the Ohio law] would frustrate the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here.” Id., at 296.

The Oliver opinion contains broad language affirming the independence of the collective-bargaining process from state interference:

“Federal law here created the duty upon the parties to bargain collectively; Congress has provided for a system of federal law applicable to the agreement the parties made in response to that duty . . . and federal law sets some outside limits (not contended to be exceeded here) on what their agreement may provide .... We believe that there is no room in this scheme for the application here of this state policy limiting the solutions that the parties’ agreement can provide to the problems of wages and working conditions.” Ibid, (citations omitted).

The opinion nevertheless recognizes exceptions to this general rule. One of them, necessarily anticipated, was the situation where it is evident that Congress intends a different result:

“The solution worked out by the parties was not one of a sort which Congress has indicated may be left to prohibition by the several States. Cf. Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301, 307-312.” Ibid.

As we understand the 1958 Disclosure Act and its legislative history, the collective-bargaining provisions at issue here dealt with precisely the sort of subject matter “which Congress . . . indicated may be left to [regulation] by the several states.” Congress clearly envisioned the exercise of state regulation power over pension funds, and we do not depart from Oliver in sustaining the Minnesota statute.

Ill

Insofar as the Supremacy Clause issue is concerned, no different conclusion is called for because the Minnesota statute was enacted after the UAW-White Motor Corp. agreement had been in effect for several years. Appellee points out that the parties to the 1971 collective-bargaining agreement therefore had no opportunity to consider the impact of any such legislation. Although we understand the equitable considerations which underlie appellee’s argument, they are not material to the resolution of the pre-emption issue since they do not render the Minnesota Pension Act any more or less consistent with congressional policy at the time it was adopted.

Our decision in this case is, of course, limited to appellee’s claim that the Minnesota statute is inconsistent with the federal labor statutes. Appellee’s other constitutional claims are not before us. It remains for the District Court to consider on remand the contentions that the Minnesota Pension Act impairs contractual obligations and fails to provide due process in violation of the United States Constitution. Without intimating any views on the merits of those questions, we note that appellee’s claim of unfair retroactive impact can be considered in that context. All that we decide here is that the decision of the Court of Appeals finding federal preemption of the Minnesota Pension Act should be and hereby is

Reversed.

Mr. Justice Brennan and Mr. Justice Blackmun took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom The Chief Justice joins, dissenting.

I substantially agree with the reasoning of the Court of Appeals for the Eighth Circuit in this case. 545 F. 2d 599. Accordingly, I would affirm the judgment before us.

The Court today seems to concede that Minnesota’s statutory modification of the appellee’s substantive obligations under its collective-bargaining agreement would be pre-empted by the federal labor laws if Congress had not somehow indicated that the State was free to impose this particular modification. Ante, at 513-514. The Court finds such an indication implicit in Congress’ failure to undertake substantive regulation of pension plans when it enacted the So-called Disclosure Act of 1958. I do not believe, however, that inferences drawn largely from what Congress did not do in enacting the Disclosure Act are sufficient to override the fundamental policy of the national labor laws to leave undisturbed “the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving . . . Teamsters v. Oliver, 358 U. S. 283, 296.

Mr. Justice Powell,

with whom The Chief Justice joins, dissenting.

I join Mr. Justice Stewart’s conclusion that the evidence as to what Congress did not do in the federal Welfare and Pension Plans Disclosure Act, 72 Stat. 997, 29 U. S. C. § 301 et seg., is insufficient to override national labor policy barring interference by the States with privately negotiated solutions to problems involving mandatory subjects of collective bargaining.

As in Teamsters v. Oliver, 358 U. S. 283, 297 (1959), “[w]e have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” The statute in this case removes from the bargaining table certain means of dealing with an inevitable trade-off between somewhat conflicting industrial relations goals — the tension between maintaining competitive standards of present compensation and, at the same time, creating a solvent fund for the security of long-term employees upon retirement. In essence, Minnesota has restricted the available options to the fully funded pension plan that vests upon 10 years of service, whenever an employer ceases to operate a place of employment or pension plan. It also imposes a principle of direct liability that well may discourage employer participation in matters of such vital importance to working men and women.

The retroactivity feature of the Minnesota measure exacerbates the degree of interference with the system of free collective bargaining. Here a statute resulting in the imposition on appellee of substantial financial liability, perhaps as large as $19 million, was enacted and took effect at a time when a collective-bargaining agreement embodying different provisions continued in force, by virtue of an arbitration decision, even though the plant in question had closed. Essential features of the negotiated plan, including deferred funding of past-service liability, limited employer liability, and a power of termination, were negated by the legislation. The parties were given no opportunity to consider this expansion of liability in determining how the bargain should be struck. It is not unlikely that the provisions of the pension plan in issue would-have been different if the parties could have predicted this statutory development. This is not, therefore, a case where state law serves as a backdrop to negotiations, while affording the parties considerable freedom to" strike the best possible bargain consistent with state substantive policies. This statute became law in midterm, significantly changing the economic balance reached by the parties at the bargaining table.

In the absence of congressional indication to the contrary, or the type of local health or safety regulation adverted to in Oliver, the States may not alter the terms of existing collective-bargaining agreements on mandatory subjects of bargaining. Congress can be expected to take into' account the impact of retroactive legislation on the bargaining process, and often provides for a delayed effective date in order to minimize any disruption. But the States, because their concerns are distinct from the considerations that animate' a national labor policy, are unlikely to weigh — with perception and understanding — the relevant private and public interests. There is little evidence that Minnesota took more than a parochial view of these considerations when it amended retroactively the bargaining agreement of the parties.

Until Congress expresses its will in clearer fashion than the ambiguous pre-emption disclaimer of the 1958 Disclosure Act, ante, at 505, federal labor policy requires invalidation of the type of statute involved in this case. I would affirm the judgment of the Court of Appeals.

       ERISA, 88 Stat. 832, 29 U. S. C. § 1001 et seq. (1970 ed., Supp. Y), provides for comprehensive federal regulation of employee pension plans, and contains a provision expressly pre-empting all state laws regulating covered plans. § 1144 (a) (1970 ed., Supp. Y). Because ERISA did not become effective until January 1, 1975, and expressly disclaims any effect with regard to events before that date, it does not apply to the facts of this case.

       Section 6.17 of the Plan also stated:
      “No benefits other than those specifically provided for are to be provided under this Plan. No employee shall have any vested right under the Plan prior to his retirement and then only to the extent specifically provided herein.” App. to Jurisdictional Statement A-29.
      Section 9.04, “Rights of Employees in Fund,” is also relevant:
      “No employee, participant or pensioner shall have any right to, or interest in any part of any Trust Fund created hereunder, upon termination of employment or otherwise, except as provided under this Plan and only to the extent therein provided. All payments of benefits as provided for in this Plan shall be made only out of the Fund or Funds of the Plan, and neither the Company nor any Trustee nor any Pension Committee or Member thereof shall be liable therefore in any manner or to any extent.” App. to Jurisdictional Statement A-7.

       The 1971 version of the Plan contained a provision which required the employer to fund the net deficiency over a period of 35 years, beginning in 1971. The 1968 version contained a similar provision which contemplated that the deficiency would be amortized over a 30-year period.

       The effect of the guarantees was to assure that the employees would receive pension benefits at a level about 60% of that specified in the Plan.

       In January 1972, after several years of losses, appellee informed the UAW that it intended to close both of the plants at issue. As a result of negotiations, the Hopkins plant continued to operate, but the Lake Street plant was closed. At the time the Lake Street plant was closed, there was a net deficiency in the Pension Fund of $14 million. As of January 1, 1975, there were 981 retirees under the Plan and 233 persons eligible for deferred pensions. In addition, there were 44 terminated employees who at the time of the termination had 10 years of service but had not attained the age of 40. Two hundred and sixty employees continued to work at the Hopkins plant.
      Appellee also attempted to terminate the Pension Plan on June 30, 1972, but the UAW challenged this action on the ground that the Plan could not be terminated until expiration of the collective-bargaining agreement on May 1, 1974. An arbitrator upheld the union’s position. See International Union, UAW v. White Motor Corp., 505 F. 2d 1193 (CA8 1974).

       The complaint claimed a conflict with the provisions and policies of §§ 1, 7, 8 (a) (5), 8 (b) (3), and 8 (d) of the NLRA, 29 U. S. C. §§ 151, 157,158 (a) (5), 158 (b) (3), and 158 (d).

       The Disclosure Act, codified at 29 U. S. C. § 301 et seq., was specifically repealed by ERISA. 29 U. S. C. §1031 (a) (1970 ed., Supp. V). However, ERISA was enacted on September 2, 1974 — after the operative events in this case — and the repeal did not take effect until January 1, 1975. § 1031 (b)(1) (1970 ed., Supp. V). See generally n. 1, supra.

       Public Papers of The Presidents, Dwight D. Eisenhower, 1954, ¶ 5, p. 43 (1960).

       Opponents of the bill argued that the legislation would “seriously interfere with . . . bargaining relationships” by giving labor unions access to information about the costs of certain employer-administered benefit plans. 104 Cong. Rec. 7209 (1958) (remarks of Sen. Allott). In these level-of-benefit plans, the employer guaranteed to his employees specified benefits and then undertook the full cost and management of the plan. The unions were often not told the annual cost of providing benefits under the plan. Senator Allott, the principal opponent of the bill, argued on the floor:
      “Where the employer, either on his own initiative or as a result of collective bargaining, agrees to provide a level-of-benefits plan, the question of whether employees or their representatives should have further information is one to be bargained between them. How the employer intends to meet this financial obligation, or how the financial operation of the fund is set up to pay the benefits, is a matter to be settled by the parties concerned — not granted by operation of law.” Id., at 7208.
      Congressman Bosch, the leading opponent of the bill in the House, argued bluntly:
      “.Those level-of-benefits plans which now operate under collective bargaining contracts were agreed to with the full knowledge by the unions involved, that the cost, operation and management were the exclusive right of the persons responsible under the plans and, if the unions desired it otherwise, they could have bargained on some other basis than level-of-benefits. If the labor unions wish to change this situation, they should do it through the normal channels of collective bargaining and not by legislation.” Id., at 16424.
      Amendments proposed by Senator Allott and Congressman Bosch seeking to exempt level-of-benefits plans from the statute were defeated. Id., at 7333, 16442.

         The Report quoted “representative language” from a General Motors-UAW contract which provided:
      “The pension benefits of the plan shall be only such as can be provided by the assets of the pension fund or by any insured fund, and there shall be no liability or obligation on the part of the corporation to make any further contributions to the trustee or the insurance company in event of termination of the plan. No liability for the payment of pension benefits under the plan shall be imposed upon the corporation, the officers, directors, or stockholders of the corporation.” S. Rep. 15.

       Among the “basic facts” noted by the Committee were:
      “9. The employees covered by these group plans have no specific rights until they meet the conditions of the particular plans. For example, in the case of a pension plan this might involve 30 years’ service and the attainment of age 65 ....
      “10. Although these plans envisaged a continuing operation to provide benefits for all employees covered — in plans which are not collectively bargained, which constitute the majority of all plans and which are predominantly administered by employers, there is actually no assurance that the benefits will be forthcoming in view of a universally employed clause in such plans to the effect that the employer can terminate the plan at his discretion. Even in collectively bargained plans the employer’s agreement to provide for part or all the costs of the benefits is a short-term contract of 1 to 5 years,” Id., at 4.

       Senator Ives, who had served as chairman of the Senate Investigating Committee during the 83d Congress, explained:
      "Six States already have enacted legislation on the general subject of pension and welfare plans. Other States are considering such legislation.” 104 Cong. Rec. 7186-7187 (1958).
      The coverage of extent state legislation was more fully discussed in S. Rep. 18.

       The Court also pointed out:
      “We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce.” 358 TJ. S., at 297.
      The State claims that the statute is a health or safety regulation that would be valid under Oliver, wholly aside from the Disclosure Act. We need not pass on this contention.

       We note that the United States as amicus curiae, argues that the Minnesota statute is not pre-empted. Its view is that application of the Minnesota Pension Act to pre-1974 labor agreements is not disruptive of the federal labor scheme.

       In Fleck v. Spannaus, 449 F. Supp. 644 (Minn. 1977), a three-judge District Court upheld the Minnesota Pension Act against a federal institutional challenge based on the Contract Clause, as well as other constitutional provisions. We have noted probable jurisdiction in that case sub nom. Allied Structured Steel Co. v. Spannaus, 434 U. S. 1045, but have not yet heard oral argument.

      Unlike the Minnesota statute, the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1001 et seq. (1970 ed., Supp. V), provides for a careful phasing in of the statute's requirements in the case of collectively negotiated pension plans. For such plans, ERISA funding requirements will apply only to plan years beginning after termination of the collective-bargaining agreement in effect on January 1, 1974, or plan years beginning after December 31, 1980, whichever is earlier. §§ 1061 (c) (1) and 1086 (c) (1) (1970 ed., Supp. V).
      This type of considered congressional response to the special problems of arrangements flowing from collective-bargaining agreements is also found in the Equal Pay Act of 1963, § 4, 77 Stat. 57, amending the Fair Labor Standards Act of 1938, 29 U. S. C. §206 (d). Congress provided that in the case of bona fide collective-bargaining agreements in effect at least 30 days prior to the date of enactment of the 1963 measure, the amendments would take effect upon the termination of such collective-bargaining agreement or upon the expiration of two years from the enactment date, whichever occurred first.