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Formal Advisory Opinion No. 10-1

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 10-1

STATE BAR OF GEORGIA
FORMAL ADVISORY OPINION NO. 10-1
Approved and Issued On July 11, 2013 Pursuant to Bar Rule 4-403
By Order Of The Supreme Court of Georgia With Comments
Supreme Court Docket No. S10U1679

COMPLETE TEXT FROM THE ORDER
OF THE SUPREME COURT OF GEORGIA

Responding to a letter from the Georgia Public Defender Standards Council (GPDSC), the State Bar Formal Advisory Opinion Board (Board) issued Formal Advisory Opinion 10-1 (FAO 10-1), in which the Board concluded that the standard for the imputation of conflicts of interest under Rule 1.10 (a) of the Georgia Rules of Professional Conduct applies to the office of a circuit public defender as it would to a private law firm. FAO 10-1 was published in the June 2010 issue of the Georgia Bar Journal and was filed in this Court on June 15, 2010. On July 5, 2010, the GPDSC filed a petition for discretionary review which this Court granted on January 18, 2011. The Court heard oral argument on January 10, 2012. For reasons set forth below, we conclude, as did the Board, that Rule 1.10 (a) applies to a circuit public defender office as it would to a private law firm, and pursuant to State Bar Rule 4.403 (d), we hereby approve FAO 10-1 to the extent it so holds.1

 

     1. At the heart of FAO 10-1 is the constitutional right to conflict-free counsel and the construction of Rule 1.10 (a) of the Georgia Rules of Professional Conduct. “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.” Wood v. Georgia, 450 U.S. 261, 271 ( 101 SC 1097, 67 LE2d 220) (2008). Indeed, this Court has stated in no uncertain terms that, “Effective counsel is counsel free from conflicts of interest.” Garland v. State, 283 Ga. 201 (657 SE2d 842) (2008). In keeping with this unequivocal right to conflict-free representation, Rule 1.10 (a) provides as follows:

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 Rule 1.7: Conflict of Interest: General Rule, 1.8(c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.

(Emphasis in original.) Comment [1] concerning Rule 1.10 defines “firm” to include “lawyers . . . in a legal services organization.” Comment [3] further provides “Lawyers employed in the same unit of a legal service organization constitute a firm, . . . .”

Under a plain reading of Rule 1.10 (a) and the comments thereto, circuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit’s public defender’s office2 is a “firm” as the term is used in the rule. This construction is in keeping with our past jurisprudence. Cf. Hung v. State, 282 Ga. 684 (2) (653 SE2d 48) (2007) (attorney who filed motion for new trial was not considered to be “new” counsel for the purpose of an ineffective assistance of counsel claim where he and trial counsel were from the same public defender’s office); Kennebrew v. State, 267 Ga. 400 (480 SE2d 1) (1996) (appellate counsel who was from the same public defender office as appellant’s trial lawyer could not represent appellant on appeal where appellant had an ineffective assistance of counsel claim); Ryan v. Thomas, 261 Ga. 661 (409 SE2d 507) (1991) (for the purpose of raising a claim of ineffective assistance of counsel, “attorneys in a public defender’s office are to be treated as members of a law firm...”); Love v. State, 293 Ga. App. 499, 501 at fn. 1 (667 SE2d 656) (2008). See also Reynolds v. Chapman, 253 F3d 1337, 1343-1344 (11th Cir. 2001) (“While public defenders’ offices have certain characteristics that distinguish them from typical law firms, our cases have not drawn a distinction between the two.”). Accordingly, FAO 10-1 is correct inasmuch is it concludes that public defenders working in the same judicial circuit are “firms” subject to the prohibition set forth in Rule 1.10 (a) when a conflict exists pursuant to the conflict of interest rules listed therein, including in particular Rule 1.7.3 That is, if it is determined that a single public defender in the circuit public defender’s office of a particular judicial circuit has an impermissible conflict of interest concerning the representation of co-defendants, then that conflict of interest is imputed to all of the public defenders working in the circuit public defender office of that particular judicial circuit. See Restatement (Third) of the Law Governing Lawyers §123 (d)(iv) (“The rules on imputed conflicts ...apply to a public-defender organization as they do to a law firm in private practice...”).

      2. Despite the unambiguous application of Rule 1.10 (a) to circuit public defenders, GPDSC complains that FAO 10-1 creates a per se or automatic rule of disqualification of a circuit public defender office. We disagree. This Court has stated that “[g]iven that multiple representation alone does not amount to a conflict of interest when one attorney is involved, it follows that counsel from the same [public defender office] are not automatically disqualified from representing multiple defendants charged with offenses arising from the same conduct.” Burns v. State, 281 Ga. 338, 340 (638 SE2d 299) (2006) (emphasis in the original). Here, Rule 1.10 does not become relevant or applicable until after an impermissible conflict of interest has been found to exist. It is only when it is decided that a public defender has an impermissible conflict in representing multiple defendants that the conflict is imputed to the other attorneys in that public defender’s office. Even then, multiple representations still may be permissible in some circumstances. See, e.g., Rule 1.10 (c) (“A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7: Conflict of Interest: General Rule.) Thus, FAO 10-1 does not create a per se rule of disqualification of a circuit public defender’s office prior to the determination that an impermissible conflict of interest exists and cannot be waived or otherwise overcome.

     Although a lawyer (and by imputation his law firm, including his circuit public defender office) may not always have an impermissible conflict of interest in representing multiple defendants in a criminal case, this should not be read as suggesting that such multiple representation can routinely occur. The Georgia Rules of Professional Conduct explain that multiple representation of criminal defendants is ethically permissible only in the unusual case. See Rule 1.7, Comment [7] (“The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.”). We realize that the professional responsibility of lawyers to avoid even imputed conflicts of interest in criminal cases pursuant to Rule 1.10 (a) imposes real costs on Georgia’s indigent defense system, which continually struggles to obtain the resources needed to provide effective representation of poor defendants as the Constitution requires. See Gideon v. Wainwright, 373 U.S. 335 (83 SC 792, 9 LE2d 799) (1963). But the problem of adequately funding indigent defense cannot be solved by compromising the promise of Gideon. See Garland v. State, 283 Ga. 201, 204 (657 SE2d 842) (2008).

     Since FAO 10-1 accurately interprets Rule 1.10 (a) as it is to be applied to public defenders working in circuit public defender offices in the various judicial circuits of this State, it is approved.4

     Formal Advisory Opinion 10-1 approved. All the Justices concur.


 

1. In FAO 10-1, the Board purported to answer a broader question–whether “different lawyers employed in the circuit public defender office in the same judicial circuit [may] represent codefendants when a single lawyer would have an impermissible conflict of interest in doing so” – and we asked the parties to address a similar question in their briefs to this Court. That statement of the question, however, is too broad. The real issue addressed by the Board – and addressed in this opinion – is solely a question of conflict imputation, that is, whether Rule 1.10 (a) applies equally to circuit public defender offices and to private law firms. No doubt, the question of conflict imputation under Rule 1.10 (a) is part of the broader question that the Board purported to answer and that we posed to the parties. But whether multiple representations are absolutely prohibited upon imputation of a conflict – even with, for instance, the informed consent of the client or the employment of “screening” measures within an office or firm – is a question that goes beyond Rule 1.10 (a), and it is one that we do not attempt to answer in this opinion. To the extent that FAO 10-1 speaks to the broader question, we offer no opinion about its correctness.

2.  There are 43 circuit public defender offices in Georgia.

3.  Rule 1.7 of the Georgia Rules of Professional Conduct provides:

(a) A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).

(b) If client informed consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected client or former client gives informed consent confirmed in writing to the representation after: (1) consultation with the lawyer pursuant to Rule 1.0(c); (2) having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation; and (3) having been given the opportunity to consult with independent counsel.

(c) Client informed consent is not permissible if the representation: (1) is prohibited by law or these Rules; (2) includes the assertion of a claim by one client against another client represented by the lawyer in the same or a substantially related proceeding; or (3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients. The maximum penalty for a violation of this Rule is disbarment.

4.  Our opinion cites several precedents that concern the constitutional guarantee of the assistance of counsel, and it is only fitting that we think about the constitutional values that Rule 1.10 promotes as we consider the meaning of Rule 1.10. We do not hold that the imputation of conflicts required by Rule 1.10 is compelled by the Constitution, nor do we express any opinion about the constitutionality of any other standard for imputation. Rule 1.10 is a useful aid in the fulfillment of the constitutional guarantee of the right to the effective assistance of counsel, but we do not hold today that it is essential to fulfill the constitutional guarantee. We do not endorse any particular alternative to Rule 1.10 (a), but we also do not foreclose the possibility that Rule 1.10 (a) could be amended so as to adequately safeguard high professional standards and the constitutional rights of an accused – by ensuring, among other things, the independent judgment of his counsel and the preservation of his confidences – and, at the same time, permit circuit public defender offices more flexibility in the representations of co-defendants. As of now, Rule 1.10 is the rule that we have adopted in Georgia, FAO 10-1 correctly interprets it, and we decide nothing more.

FORMAL ADVISORY OPINION NO. 10-1

QUESTION PRESENTED:

May different lawyers employed in the circuit public defender office in the same judicial circuit represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so?

SUMMARY ANSWER:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

OPINIONS:

In Georgia, a substantial majority of criminal defendants are indigent.  Many of these defendants receive representation through the offices of the circuit public defenders.  More than 40 judicial circuit public defender offices operate across the State.

Issues concerning conflicts of interest often arise in the area of criminal defense.  For example, a single lawyer may be asked to represent co-defendants who have antagonistic or otherwise conflicting interests.  The lawyer’s obligation to one such client would materially and adversely affect the lawyer’s ability to represent the other co-defendant, and therefore there would be a conflict of interest under Georgia Rule of Professional Conduct 1.7(a).  See also Comment [7] to Georgia Rule of Professional Conduct 1.7 (“…The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant”).  Each such client would also be entitled to the protection of Rule 1.6, which requires a lawyer to maintain the confidentiality of information gained in the professional relationship with the client.  One lawyer representing co-defendants with conflicting interests certainly could not effectively represent both while keeping one client’s information confidential from the other.  See Georgia Rule of Professional Conduct 1.4 (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation…”).

Some conflicts of interest are imputed from one lawyer to another within an organization.  Under Georgia Rule of Professional Conduct 1.10(a), “[w]hile 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….”  Therefore, the answer to the question presented depends in part upon whether a circuit public defender office constitutes a “firm” within the meaning of Rule 1.10.

Neither the text nor the comments of the Georgia Rules of Professional Conduct explicitly answers the question.  The terminology section of the Georgia Rules of Professional Conduct defines “firm” as a “lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization.  See Comment, Rule 1.10: Imputed Disqualification.”  Comment [1] to Rule 1.10 states that the term “firm” includes lawyers “in a legal services organization,” without defining a legal services organization.  Comment [3], however, provides that:

Similar questions can also arise with respect to lawyers in legal aid.  Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units.  As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.

That is the extent of the guidance in the Georgia Rules of Professional Conduct and the comments thereto.  In the terms used in this Comment, the answer to the question presented is determined by whether lawyers in a circuit public defender’s office are in the same “unit” of a legal services organization.

The Supreme Court of Georgia has not answered the question presented.  The closest it has come to doing so was in the case of Burns v. State, 281 Ga. 338 (2006).  In that case, two lawyers from the same circuit public defender’s office represented separate defendants who were tried together for burglary and other crimes.  The Court held that such representation was permissible because there was no conflict between the two defendants.  Presumably, therefore, the same assistant public defender could have represented both defendants.  The Court recognized that its conclusion left open “the issue whether public defenders should be automatically disqualified or be treated differently from private law firm lawyers when actual or possible conflicts arise in multiple defendant representation cases.”  Id. at 341.

Other states, in case law and ethics opinions, have decided the question presented in disparate ways.  Some impute conflicts within particular local defender offices.  See Commonwealth v. Westbrook, 400 A2d 160, 162 (Pa. 1979); Turner v. State, 340 So.2d 132, 133 (Fla. App. 2nd Dist. 1976); Tex. Ethics Op. 579 (November 2007); Va. Legal Ethics Op. No. 1776 (May 2003); Ct. Informal Op. 92-23 (July 1992); S.C. Bar Advisory Op. 92-21 (July 1992).  Some courts and committees have allowed for the possibility that there can be sufficient separation of lawyers even within the same office that imputation should not be automatic.  Graves v. State, 619 A.2d 123, 133-134 (Md. Ct. of Special Appeals 1993); Cal. Formal Op. No. 2002-158 (Sept. 2002); Montana Ethics Op. 960924.  Others have decided more generally against a per se rule of imputation of conflicts.  See Bolin v. State, 137 P.3d 136, 145 (Wyo.  2006); State v. Bell, 447 A.2d 525, 529 (N.J. 1982); People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979); State v. Cook, 171 P.3d 1282, 1292 (Idaho App. 2007).

The Eleventh Circuit Court of Appeals looked at an imputed conflict situation in a Georgia public defender office.  The Court noted that “[t]he current disciplinary rules of the State Bar in Georgia preclude an attorney from representing a client if one of his or her law partners cannot represent that client due to a conflict of interest.”  Reynolds v. Chapman, 253 F.3d 1337, 1344 (2001).  The Court further stated that “[w]hile public defender’s offices have certain characteristics that distinguish them from typical law firms, our cases have not drawn a distinction between the two.”  Reynolds, supra, p. 1343.

The general rule on imputing conflicts within a law firm reflects two concerns.  One is the common economic interest among lawyers in a firm.  All lawyers in a firm might benefit if one lawyer sacrifices the interests of one client to serve the interests of a different, more lucrative client.  The firm, as a unified economic entity, might be tempted to serve this common interest, just as a single lawyer representing both clients would be tempted.  Second, it is routine for lawyers in a firm to have access to confidential information of clients.  A lawyer could access the confidential information of one of the firm’s clients to benefit a different client.  For at least these two reasons, a conflict of one lawyer in a private firm is routinely imputed to all the lawyers in the firm.  See RESTATEMENT OF THE LAW GOVERNING LAWYERS Third, Sec. 123, Comment b.

The first of these concerns is not relevant to a circuit public defender office.  “The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice.”  Frazier v. State, 257 Ga. 690, 695 (1987) citing ABA Formal Opinion 342.

The concerns about confidentiality, however, are another matter.  The chance that a lawyer for one defendant might learn the confidential information of another defendant, even inadvertently, is too great to overlook.

Other concerns include the independence of the assistant public defender and the allocation of office resources.  If one supervisor oversees the representation by two assistants of two clients whose interests conflict, the potential exists for an assistant to feel pressured to represent his or her client in a particular way, one that might not be in the client’s best interest.  Furthermore, conflicts could arise within the office over the allocation of investigatory or other resources between clients with conflicting interests.

The ethical rules of the State Bar of Georgia should not be relaxed because clients in criminal cases are indigent.  Lawyers must maintain the same level of ethical responsibilities whether their clients are poor or rich.

Lawyers employed in the circuit public defender office are members of the same “unit” of a legal services organization and therefore constitute a “firm” within the meaning of Rule 1.10.  Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.  Conversely, lawyers employed in circuit public defender offices in different judicial circuits are not considered members of the same “unit” or “firm” within the meaning of Rule 1.10.



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