Lee v. State, UU-227
| Decision Date | 01 June 1981 |
| Docket Number | No. UU-227,UU-227 |
| Parties | Freddie Lewis LEE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard Babb, Jr., Public Defender, Tavares, in pro. per.
No appearance for respondent.
In each of two unrelated cases, the public defender certified to the trial court 1 that his representation of the defendant conflicted with his representation of another defendant for whom he previously had been appointed by the court and requested the court to appoint private counsel unaffiliated with the public defender's office. In each case, the trial court held no conflict would arise, so long as the defendants were represented by assistant public defenders from separate counties within the circuit who would work independently of one another. The public defender seeks review of these orders by a petition for writ of prohibition, alleging that, where one assistant public defender is unable to represent a defendant, all other assistant public defenders within that circuit should be similarly disqualified.
Disciplinary Rule 5-105(D) of the Florida Bar's Code of Professional Responsibility provides that, where a lawyer is unable to represent a client whose interests conflict with those of another client, "no partner or associate of his or his firm may accept or continue such employment." In Turner v. State, 340 So.2d 132 (Fla.2d DCA 1976), the Second District decided that the public defender's office within a given circuit was a "firm" within the meaning of this prohibition, and held that separate attorneys within a particular public defender's office could not represent antagonistic codefendants. Turner relied on Allen v. District Court, 184 Colo. 202, 519 P.2d 351 (1974), which focused upon the exchange of information among members of the office in ruling that assistant public defenders were members of a "firm." 2 Turner has been followed by the Third District in this regard in Roberts v. State, 345 So.2d 837 (Fla.3d DCA 1977).
While we agree that attorneys employed by a public defender who are required to "practice their profession side by side, literally and figuratively" 3 are members of a "firm" for purposes of the rule, we believe that, where the practice of each attorney is so separated from the other's that the interchange of confidential information can be avoided or where it is possible to create such a separation, there need be no relationship between them analogous to that of a law firm and there would be no inherent ethical bar to their representation of antagonistic interests. This possibility was not considered by the Turner court or by the other courts relying on, or citing to, Turner. 4 For example, the issue in Adams v. State, 380 So.2d 421 (Fla.1980), was the propriety of the appointment of the Public Defender of the Nineteenth Judicial Circuit in a case wherein the issue was the competency of prior representation by that same public defender (or his designee). This is altogether different from the issue herein presented. In none of the Florida cases cited above Turner, Roberts, or Adams was any consideration given to the question we address in this opinion: Whether or not two adverse defendants may be represented by assistant public defenders in the same circuit whose offices and facilities are sufficiently insulated from each other so as to assure that confidential information is not inadvertently exchanged.
Here, the trial judge specifically addressed the question of separation and found that, since the two appointed assistant public defenders maintained separate offices in separate counties, no danger of information transfer between the two was shown. Under these facts, the only relation between the two attorneys was that both were employed by the public defender of the circuit, which fact alone would not ethically bar them from representing adverse interests. 5 The trial judge was therefore correct in ruling that the appointment was not barred by considerations of ethics.
We must then consider the effect of the language in section 27.53(3), Florida Statutes (Supp.1980), upon this problem. That section reads:
If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to certify such fact to the court, and the court shall appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender, to represent those accused. (Emphasis added).
We believe the above language should be construed to require the public defender (or assistant public defender representing a particular defendant) to do more than merely ascertain that there is hostility or adversity between defendants represented by his office before filing a motion to withdraw; it is also his duty to ascertain, as a condition precedent to the filing of that motion, that counseling of such defendants by different members of the staff cannot be done "without conflict of interest," as provided by the statute. If attorneys employed by the same public defender are not equated, for purposes of considering conflicts of interest, with private attorneys associated in the same law firm, 6 then the factors discussed above relating to the protection of confidential information by separation of offices, facilities and personnel must be weighed by the public defender in the filing of a motion to withdraw. And such factors must be weighed by the trial court in its...
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