The new advisory opinion (PDF Page 92) for the handling of conflict cases for the Georgia Public Defender Standards Council was the talk of the recent Fall Seminar (PDF) for the Georgia Association of Criminal Defense Lawyers. This issue has been divisive among the criminal defense bar. GACDL has not weighed in as amicus counsel in litigation involving the conflict rule. The conflict rule is a step in the right direction but does not go far enough. And the rule will be ripe for challenge under the Sixth Amendment in future appellate cases. First, a little background on the rule and a discussion of why it’s a step in the right direction. Finally, I’ll discuss why it will probably be an invitation for future Sixth Amendment Ineffective Assistance of Counsel claims because it doesn’t go far enough.
The Conflict Rule
The State Bar of Georgia issued a formal advisory opinion holding that a circuit public defender’s office is a “law firm” as defined by Georgia Rule of Professional Conduct 1.10(a). Under that rule, a conflict in representation that would prevent a lawyer from representing co-defendants in a single matter is imputed to other lawyers working in the same firm and is an ethical bar to any lawyer in the firm representing the co-defendant.
We were quickly developing into a State with two sets of conflict rules: one for rich people and another for the other 90% of the criminal calendar. Case law from the Supreme Court of Georgia was starting to go in the other direction. For instance, in Burns v. State, 638 S.E.2d 299 (2006), the Supreme Court of Georgia declined to adopt a per se rule that lawyers in a single public defender’s office cannot represent multiple defendants in the same matter. The Supreme Court of Georgia found that there was no conflict in the particular case and declined to make any rule. The decision also seemed politically expedient for 2006 when GPDSC was just beginning to financially melt down. The mess got worse. Conflicts were being ignored with impunity when the defendant happened to be poor.
Then, the State Bar of Georgia stepped in and issued the formal advisory opinion (PDF Page 92). The opinion was not well-received by Georgia’s Republic legislative regime. Senator John Wiles, R-Kennesaw supported a proposal to abolish the State Bar of Georgia. The former Bar President then sent an email to the Georgia Bar’s Board of Governors asking them to oppose his candidacy. He lost in the Republican Primary.
Quoting Blackstone again: bwa ha ha ha ha
So, Here’s the Sixth Amendment Problem
The State Bar has held that a public defender in one office can represent conflict clients in another circuit public defender’s office. And that is the route GPDSC has chosen. Think of the levels of Sixth Amendment problems and how, to quote Mr. Blackstone, “whacked out” this system is
- GPDSC is a single statewide law firm governed by approximately 40 managing partners, directed by a council of senior partners, and a centralized chief partner. If it isn’t, then why can’t I open an office in another Georgia county and use that office to split co-defendants with the guy I allow to “run” that office? More profit for me, right?
- How can assistant public defenders possibly manage a caseload that is already too high plus a load of conflict cases from neighboring counties?
- What about direct appeals? A big cause of conflicts is a claim of ineffective assistance of counsel by a convicted defendant. So, under the new system, trial attorneys will likely mix busy trial practices and an appellate practice (handling most of every calendar in an assigned courtroom plus running an appellate practice). It’s an invitation to ineffective assistance of appellate counsel
- The resource problem remains. In the Advisory Opinion, the Bar notes that part of why you should impute a conflict within a circuit defender’s officer is that a single supervisor might have an incentive to manipulate resources to move the cases. (“oh, your guy won’t claim the dope in the car. Well, let me show you your new office, back there by the copier.”) And there would be a tendency to compete for investigative resources. So, now imagine the conflict defender walking into a foreign office and trying to ask the local Public Defender to devote resources for this interloper or the APD’s own supervisor to allocate resources for the foreign office when he goes to another county to do a conflict case.
So, habeas counsel, get ready to start raising new IAC claims. And yes, conflict issues are in 6th Amendment territory. For more on that idea, check out Holloway v. Arkansas, 435 U.S. 475 (1978).