  WHITE, J., filed a dissenting opinion, post, p.  450 U. S. 275.JUSTICE POWELL delivered the opinion of the Court.Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines.  Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment.  Since the record in this case Page 450 U. S. 263 suggests that petitioners may be in their present predicament because of the divided loyalties of their counsel, we have concluded that it is inappropriate to reach the merits of this difficult equal protection issue.  Instead, we remand this case for further findings concerning a possible due process violation.IPetitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga.Code § 2 2101 (1978).  About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore.  There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities.Tante and Allen were tried together and found guilty on both counts by a jury.  A separate jury convicted Wood on both counts.  All three were then sentenced by the same judge.  Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation.  Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately.After these convictions were affirmed on appeal, [Footnote 1] the trial court issued orders specifying the terms of probation.  These required all three petitioners to make installment payments on their fines of $500 per month during the course of their periods of probation.  After three months had elapsed, none of the petitioners had made any of the required payments, and the county probation officers therefore moved for revocation Page 450 U. S. 264 of their probations.  At a hearing on January 26, 1979, petitioners admitted that they had failed to make the installment payments, but offered convincing evidence of their inability to make these payments out of their own earnings. [Footnote 2]  They also stated that they had expected their employer [Footnote 3] to pay the fines for them.  Faced with petitioners' complete failure to satisfy a condition of their probations, the court decided to revoke these probations unless petitioners made up their arrearages within five days.  Unable to do so, petitioners moved for a modification of the conditions of their probations.  This motion was denied, and the court ordered petitioners to serve the remaining portions of their jail sentences.IIAfter this revocation decision was affirmed by the Georgia Court of Appeals, [Footnote 4] we granted a writ of certiorari to decide a question presented by the facts just summarized:  whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines.  446 U.S. 951.  On closer inspection, however, the record reveals other facts that make this an inappropriate case in which to decide the constitutional question.  Where, as here, a possible due process violation is Page 450 U. S. 265 apparent on the particular facts of a case, we are empowered to consider the due process issue. [Footnote 5]  Moreover, for prudential reason, it is preferable for us to remand for consideration of this issue, rather than decide a novel constitutional question that may be avoided.  Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101,  323 U. S. 105 (1944) (broad constitutional Page 450 U. S. 266 questions should be avoided where a case may be decided on narrower, statutory grounds on remand).Petitioners have been represented since the time of their arrests by a single lawyer.  The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid -- or was expected to pay -- the lawyer for his service. [Footnote 6]  They understood that this legal assistance was provided to them by their employer. [Footnote 7]  In fact, the transcript of this hearing reveals that legal representation was only one aspect of the assistance that was promised to petitioners if they should face legal trouble as a result of their employment.  They were told that their employer also would pay any fines and post any necessary bonds, [Footnote 8] and these promises were kept for the most part.  In this case itself, as petitioners' lawyer stated at oral argument, bonds were posted with funds he provided. [Footnote 9]  In addition, when each of the petitioners was arrested  a second time, he paid the resulting fines. [Footnote 10]  All aspects of this arrangement were revealed to the court at the revocation hearing. Page 450 U. S. 267For some reason, however, the employer declined to provide money to pay the fines in the cases presently under review. [Footnote 11]  Since it was this decision by the employer that placed petitioners in their present predicament, and since their counsel has acted as the agent of the employer and has been paid by the employer, the risk of conflict of interest in this situation is evident.  The fact that the employer chose to refuse payment of these fines, even as it [Footnote 12] paid other fines and paid the sums necessary to keep petitioners free on bond in this case, suggests the possibility that it was seeking -- in its own interest -- a resolution of the equal protection claim raised here.  If offenders cannot be jailed for failure to pay fines that are beyond their own means, then this operator of "adult" establishments may escape the burden of paying the fines imposed on its employees when they are arrested for conducting its business.  To obtain such a ruling, however, it was necessary for petitioners to receive fines that were beyond their own means, and then risk jail by failing to pay.Although we cannot be sure that the employer and petitioners' attorney were seeking to create a test case, there is a clear possibility of conflict of interest on these facts.  Indications of this apparent conflict of interest may be found at various stages of the proceedings below.  It was conceded at oral argument here that petitioners raised no protest about the Page 450 U. S. 268 size of the fines imposed at the time of sentencing.  During the three months leading up to the probation revocation hearing, they failed to pay even small amounts toward their fines to indicate their good faith.  In fact, throughout this period, petitioners apparently remained under the impression that -- as promised -- the fines would be paid by the employer.  Even at the revocation hearing itself, petitioners attempted to prove their inability to make the required payments, but failed to make a motion for a modification of those requirements.  That motion was not made until one day before petitioners were due to be incarcerated. [Footnote 13]  A review of these facts demonstrates that, if petitioners' counsel was serving the employer's interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court to impose such large fines, as well as the decision to revoke petitioners' probations, rather than to modify the conditions. [Footnote 14]IIICourts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a Page 450 U. S. 269 lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise. [Footnote 15]  One risk is that the lawyer will prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer's interest. [Footnote 16]  Another kind of risk is Page 450 U. S. 270 present where, as here, the party paying the fees may have had a long-range interest in establishing a legal precedent, and could do so only if the interests of the defendants themselves were sacrifice. [Footnote 17]  As suggested above, the factual setting of this case requires the Court to take note of the potential unfairness resulting from this particular third-party fee arrangement.  Petitioners were mere employees, performing the most routine duties, yet they received heavy fines on the apparent assumption that their employer would pay them.  They now face prison terms solely because of the employer's failure to pay the fines, having been represented throughout Page 450 U. S. 271 by a lawyer hired by that employer.  The potential for injustice in this situation is sufficiently serious to require us to consider whether petitioners have been deprived of federal rights under the Due Process Clause of the Fourteenth Amendment.We have held that due process protections apply to parole and probation revocations.  Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972).  In Scarpelli, we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings.  Recognizing that the"need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases,"411 U.S. at  411 U. S. 789, we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel.In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga.Code § 27-2713 (1978).  But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely.  Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but"there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present."411 U.S. at  411 U. S. 790.  This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category.Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.  E.g., Cuyler v. Sullivan, 446 U. S. 335 (1980); Holloway v. Arkansas, 435 U. S. 475,  435 U. S. 481 (1978).  Here, petitioners were represented by their employer's lawyer, who may not have pursued Page 450 U. S. 272 their interests single-mindedly.  It was his duty, originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient.  On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him.  If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below.It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue.  Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. [Footnote 18]  The facts outlined above were all made known at that time.  The court must have known that it had imposed disproportionately large fines -- penalties that almost certainly were increased because of an assumption that the employer would pay the fines. [Footnote 19]  The court did know that petitioners' counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial reductions in, or deferrals of, the fines.  These facts demonstrate convincingly the duty of the court to recognize the possibility of a disqualifying conflict of interest.  Any doubt as to whether the court should have been aware of the problem is dispelled Page 450 U. S. 273 by the fact that the State raised the conflict problem explicitly and requested that the court look into it. [Footnote 20]For these reasons, we base our decision in this case on due process grounds.  The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County.  That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of,the probation revocation or earlier.  If the court finds that an actual conflict of interest existed at that time, and that there Page 450 U. S. 274 was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests. [Footnote 21]Vacated and remanded
U.S. Supreme CourtWood v. Georgia, 450 U.S. 261 (1981)Wood v. GeorgiaNo. 79-6027Argued November 4, 1980Decided March 4, 1981450 U.S. 261SyllabusPetitioners, former employees of an "adult" movie theater and bookstore, were convicted of distributing obscene materials in violation of a Georgia statute and received fines and jail sentences, but were placed on probation on the condition that they make monthly installment payments toward the satisfaction of the fines.  When petitioners failed to make the payments, a probation revocation hearing was held. Petitioners, who had by that time left their jobs in the "adult" establishments, offered evidence of their inability to make the payments and stated that they had expected their former employer to pay the fines for them.  When petitioners were unable to make up their arrearages, the Georgia trial court denied their motion to modify the probation conditions and ordered petitioners to serve the remaining portions of their jail sentences.  After the Georgia Court of Appeals affirmed, this Court granted a writ of certiorari to decide whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines.Held:  This is an inappropriate case in which to decide the equal protection question.  Since the record suggests that petitioners may be in their present predicament because of their counsel's divided loyalties, a possible due process violation is apparent, and the case is remanded for further findings concerning such possible violation.  Pp.  450 U. S. 264-274.(a) The transcript of the revocation hearing shows that petitioners understood that their former employer would provide legal assistance if they should face legal trouble as a result of their employment, would pay any fines, and would post any necessary bonds.  Petitioners have been represented since the time of their arrest by a single lawyer, who was paid by the employer and who posted bonds in this case and paid other fines when each of the petitioners was arrested a second time.  If petitioners' counsel was serving the employer's interest in obtaining an equal protection ruling that offenders cannot be jailed for failure to pay fines that are beyond their means, which could only occur if petitioners received fines beyond their own means and then risked jail by failing to pay, this conflict in goals may have influenced the trial court's decisions to impose large fines and to revoke the probations, rather than modify the conditions thereof.  Pp.  450 U. S. 264-268. Page 450 U. S. 262(b) If counsel was influenced in his basic strategic decisions by the employer's interest, petitioners' due process right to representation free from conflicts of interest was not respected at the revocation hearing, or at earlier stages of the proceedings.  The possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.  If, on remand, the court finds that an actual conflict of interest existed at the time of the probation revocation or earlier, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing untainted by a legal representative serving conflicting interests.  Pp  450 U. S. 268-274.150 Ga.App. 582, 258 S.E.2d 171, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and STEVENS, JJ., joined.  STEVENS, J., filed a concurring opinion, post, p.  450 U. S. 274.  BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p.  450 U. S. 274.  STEWART, J., filed an opinion concurring in part and dissenting in part, post, p.  450 U. S. 275.  WHITE, J., filed a dissenting opinion, post, p.  450 U. S. 275.