In re Opinion, S10U1679.
Decision Date | 11 July 2013 |
Docket Number | No. S10U1679.,S10U1679. |
Citation | 744 S.E.2d 798,293 Ga. 397 |
Parties | In re FORMAL ADVISORY OPINION 10–1. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, Michael L. Edwards, for appellant.
Paula J. Frederick, General Counsel State Bar, Robert E. McCormack III, Deputy General Counsel State Bar, John J. Shiptenko, Assistant General Counsel State Bar, for State Bar of Georgia, Hull Barrett, James B. Ellington, Augusta, for appellee.
Perry & Walters, George P. Donaldson III, Albany, Hogue & Hogue, Franklin J. Hogue, Macon, Elizabeth P. Bradley, James F. Grubiak, Russell C. Gabriel, J. Scott Key, Stephen B. Bright, Atlanta, Melanie Velez, Gerald R. Weber, Jr., Atteeyah E. Hollie, amici curiae.
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 grantedon 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 S.Ct. 1097, 67 L.Ed.2d 220 (1981). 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, 202, 657 S.E.2d 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 office 2 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 S.E.2d 48 (2007) ( ); Kennebrew v. State, 267 Ga. 400, 480 S.E.2d 1 (1996) ( ); Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507 (1991) ( ); Love v. State, 293 Ga.App. 499, 501, fn. 1, 667 S.E.2d 656 (2008). See also Reynolds v. Chapman, 253 F.3d 1337, 1343–1344 (11th Cir.2001) (). 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) ().
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 S.E.2d 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) ( ) 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, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But the problem of adequately funding indigent defense cannot be solved by compromising the promise of Gideon. See Garland v. State, supra, 283 Ga. 201, 204, 657 S.E.2d 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...
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