Debate over public defender conflicts continues
4:09 pm, February 16th, 2012
Over at his Georgia Criminal Appellate Law Blog, McDonough criminal defense attorney J. Scott Key has gotten into a heated debate with Southwestern Circuit Public Defender Samuel G. Merritt over how public defender offices should handle client conflicts.
What has brought the question to a head is an advisory opinion issued in 2010 by the State Bar board that drafts opinions on ethical matters. The opinion says different lawyers employed in the same circuit public defender office may not represent co-defendants when a single lawyer representing those defendants would have a conflict of interest.
Worried about the potential costs of that approach, the Georgia Public Defender Standards Council has challenged the rule, arguing that many such conflicts can be addressed by screening off lawyers within an office. The Georgia Supreme Court heard arguments on the matter last month. (Formal Advisory Opinion No. 10-1 videos)
A post by Key criticized public defenders’ willingness to support what Key says are double standards for poor people.
That prompted a lengthy response from Merritt, who said he didn’t think Key had all the facts.
Key shot back that he was chairman of the amicus committee for the Georgia Association of Criminal Defense Lawyers and bristled at the idea that the opinions of someone “outside the public defender world” carried less weight.
Check out Key’s blog for all the rhetorical fireworks.
Contributor: Alyson M. Palmer in Misc | subscribe to rss | 
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February 17th, 2012 at 9:17 am
Michael Mears, Associate Professor
Atlanta’s John Marshall Law School
I have had more than a passing interest in the work of the State Bar of Georgia committee which unanimously approved an advisory opinion that prohibits public defenders working in the same circuits from representing more than one defendant in a particular case. When I saw the exchange between Attorney Scott Key and Public Defender Sam Merritt, as reported by Alyson Palmer I could not contain my better judgment to stand on the sideline while this matter is resolved by the Court. Scott Key is absolutely correct that the current executive branch decision of the governor’s public defender agency creates dual standards, one standard for those criminally charged individuals with money and the clients of the public defender offices.
The issues covered by the Bar’s advisory opinion became even more complicated when decisions were made which allows a circuit public defender to transfer conflict cases to other circuit defender offices. Unfortunately, this amendment, which was offered for the purpose of saving “…the state a couple of million dollars;” will only exacerbate the problem which the bar’s advisory opinion is trying to resolve. The Supreme Court of Georgia must now decide whether or not to approve this opinion and thus make it mandatory in the State of Georgia. The Supreme Court should, and must, approve the State Bar’s Advisory opinion. In large part, the credibility of the public defender segment of Georgia’s criminal justice system depends upon that approval. In fact, the Official Code of Georgia Annotated provides that “[t]he circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity.”
This legislation is entirely consistent with the American Bar Associations’ Standards for Criminal Justice which provides, in part, that
(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated 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 current advisory opinion is also entirely consistent with the Georgia Rules of Professional Conduct. A comment to those Rules provides that
[15] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. . . . Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.
The Georgia Rules of Professional Conduct also provide, in part, that “[A] lawyer who represents two or more clients shall not participate in making an aggregated settlement of the claims for or against the clients, nor in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all claims or pleas involved and the participate of each person in the settlement.” A lawyer who violates these Rules is subject to, at least, a public reprimand, and possibly, disbarment.
The legislation creating the public defender system in Georgia and the state bar’s advisory opinion is also consistent with The Judicial Conference of the United States which adopted a “Code of Conduct” for federal public defenders in 1996. This “Code of Conduct” provides an excellent guide for state public defenders and circuit public defender offices. The Judicial Conference’s Code of Conduct provides, in part, as follows:
[W]hen a defender employee knows that a conflict of interest may be presented in the performance of duties, the defender employee should promptly inform the federal public defender. The federal public defender, after determining that a conflict or the appearance of a conflict of interest exists, should take appropriate steps to restrict the defender employee’s performance of duties in such a matter so as to avoid a conflict or the appearance of a conflict of interest. If the conflict involves a conflict between or among clients, the federal public defender should consider withdrawal from one or more representations, or other appropriate remedial actions, as necessary to comply with applicable rules of professional conduct. A defender employee should observe any restrictions imposed by the federal public defender in this regard.
The State Bar of Georgia’s advisory opinion is, in essence, the answer to the question of whether public defenders and public defender offices are going to be held to the same standards as private attorneys. Those opposed to applying the same rules to public defenders, such as out-going State Senator Preston Smith, are content to divide the constitutional guarantees of equal protection into two classes, one type of justice for those who can afford to hire attorneys and one type for those who depend upon public defenders to defend their rights.
Conclusion
The legislation which created the state-wide system of public defended provides that the Standards to be promulgated by the Standards Council shall include “(2) Standards prescribing minimum experience, training, and other qualifications for appointed counsel where a conflict of interest arises between the public defender and an indigent person.” The legislation also provides that “the circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity.” The Council has attempted to pass this responsibility off to the dust bin under the rubric that it is too expensive to follow the rules of conflicts of interests which apply to every other lawyer in Georgia. Hopefully the Supreme Court of Georgia will follow precedent and reason and approve the State Bar of Georgia’s advisory opinion.