Public Defense

Mi case es su case

By Gideon

Consider the following scenario: defendant A is arrested for a burglary. Defendant A, in confessing to the crime, implicates defendant B. Defendant A is unable to afford counsel and is represented by the Lawyer A of the public defender’s office. Defendant B is also unable to afford private counsel. Which of the following is the correct step to take regarding the appointment of counsel for Defendant B:

1. Appoint a private attorney as a “special public defender/assigned counsel/conflict attorney”.
2. Appoint Lawyer B of the same public defender’s office as Lawyer A, and pray that they behave themselves and don’t share information.

If you have your head screwed on right, you’d choose 1. If you were two members of the public defender’s office and 3 judges of the appellate court, you’d choose B.

Don’t believe me? See for yourself. In Anderson v. Comm’r, the appellate court reversed a habeas court’s finding that the representation of two co-defendants by two public defenders of the same office violated the right to conflict-free counsel. That the public defender’s office didn’t see the need to assign one of the co-defendants to a lawyer outside their office is troubling enough, but the Appellate Court’s decision to condone this highly improper, if not unethical practice, is mind-boggling.

The Court writes:

The respondent contends that Babcock was not subject to imputation under rule 1.10 because she was a government employee, citing rule 1.10(d) and the commentary to rule 1.11. Rule 1.10(d) of the Rules of Professional Conduct provides: “The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.” Rule 1.11(d), in turn, subjects current government lawyers to rules 1.7 and 1.9, regarding personal conflicts of interest, but does not provide for the imputation of conflicts. Rather, the commentary to rule 1.11 emphasizes that “Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule” and explains that “[b]ecause of the special problems raised by imputation within a government agency, subsection (d) [of rule 1.11] does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers. . . .”

This is nothing but classic cherry-picking of words in that rule to reach the result the court wants (which is just absurd in of itself that the court wants to reach the result that there’s no conflict in this scenario). My plain reading of Rule 1.11 is that the rule doesn’t even apply to the situation in this case. Take a look [pdf]:

Subsection (a) starts: Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government;

Subsection (b) starts: When a lawyer is disqualified from representation under subsection (a);

Subsection (c) starts: Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent [...];

Subsection (d) seems to apply, so I’ll quote it in relevant part:

Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) Is subject to Rules 1.7 and 1.9; and
(2) Shall not:
(i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the  appropriate government agency gives its informed consent, confirmed in writing; or

(ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially; except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private  employment as permitted by Rule 1.12 (b) and subject to the conditions stated in Rule 1.12 (b).

Subsection (e) just defines “matter”. All of Rule 1.11 deals with current public employees and their dealings with former clients or former public employees and their dealings with current clients. There’s nothing about current public employees, who are part of the same firm, and current clients of that same firm.

The Court also relies on the commentary to Rule 1.11 (quoted above) to supports its conclusion, but a plain reading of the commentary also belies that. The commentary starts:

A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7.

Then there’s Rule 1.10, which deals with lawyers in the same firm:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7

So what does Rule 1.7 say?

(a) Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer?s responsibilities to  another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or the same proceeding before any tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Clearly, this Rule applies. There’s no way, in the scenario of the case, that the lawyers can escape b(3) above. The Court, however, ignores all of this with some handwavium and declares that Rule 1.11 governs this scenario and so there’s no imputed conflict of interest and so the lawyers did nothing wrong (although we sternly shake our finger at them). Ignoring precedent from our supreme court (okay, not so much ignoring as magically distinguishing) the court then reverses the habeas court and denies the petition. I’ve been told that the supreme court has granted cert., so they will, in the end, decide if sanity is to be restored.

But the mere idea that any court would tolerate this improper behavior from two attorneys is a little disconcerting. It is almost standard practice – and done without question – to assign private counsel to represent co-defendants in a case in every jurisdiction here. For good reason. Because everyone recognizes the pitfalls that come with the type of representation that Anderson and his co-defendant received in this case.

The habeas court makes a valid point: what if this case had gone to trial and not resulted in a plea? Would Lawyer A have cross-examined his next-door office occupier Lawyer B’s client? How could either Defendant A or Defendant B have any confidence that the two lawyers weren’t sharing notes and information. How are the two defendants’ interests not adverse?

Why is this even a discussion?

Full post as published by A Public Defender on October 28, 2011 (boomark / email).