Scott v. State

• Citation: 991 So.2d 971
• Decision Date: 22 September 2008
• Docket Number: No. 1D06-4439.,1D06-4439.
• Parties: Clifford Earl SCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

991 So.2d 971

Clifford Earl SCOTT, Appellant, v. STATE of Florida, Appellee.

No. 1D06-4439.

District Court of Appeal of Florida, First District.

September 22, 2008.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Clifford Scott appeals convictions for possession of cocaine with intent to sell, possession of marijuana, and reckless driving. Before the jury was sworn, trial counsel, an assistant public defender, informed the trial court—purportedly as soon as he learned of the problem himself—of a conflict of interest, viz., that the public defender's office also represented the "confidential informant" who was assigned to make a "controlled buy" from Mr. Scott at the time of the events that led to the charges against him.¹ The trial court denied trial counsel's written motion [for leave] to withdraw. On this direct appeal, we reverse.

Abuse of discretion is the standard of review when a motion for leave to withdraw is denied. See Weaver v. State, 894 So.2d 178, 187 (Fla.2004); Weems v. State, 645 So.2d 1098, 1099 (Fla. 4th DCA 1994). Insofar as pertinent here, "a public defender's office is the functional equivalent of a law firm. Different attorneys in the same public defender's office cannot represent defendants with conflicting interests." Bouie v. State, 559 So.2d 1113, 1115 (Fla. 1990); Ward v. State, 753 So.2d 705, 708 (Fla. 1st DCA 2000); Valle v. State, 763 So.2d 1175, 1178 (Fla. 4th DCA 2000); see also State v. Hocker, 34 Fla. 25, 15 So. 581, 583 (1894) ("What a partner does in the firm name in the pursuit of its ordinary business is done by the firm, and upon the firm's responsibility."); R. Regulating Fla. Bar 4-1.10(a) (providing that, except in limited circumstances, one lawyer's disqualification from a case on grounds of a conflict of interest is imputed to all lawyers practicing in the lawyer's firm).

Conflicts of interest are best addressed before a lawyer laboring under such a conflict does any harm to his or her client(s)'s interests. Any prejudicial effect on the adequacy of counsel's representation is presumed harmful. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Viewed prospectively, any substantial risk of harm is deemed prejudicial. Rule 4-1.7(a) of the Rules Regulating the Florida Bar provides that, unless certain conditions² not present here are met,

a lawyer shall not represent a client if:

(1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

See also Restatement (Third) of Law Governing Lawyers § 121 (2000) (providing that except in cases where a client provides informed consent and other conditions apply, "a lawyer may not represent a client if the representation would involve a conflict of interest" and explaining that "[a] conflict of interest is involved if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person").

Although the rule was once otherwise,³ section 27.5303, Florida Statutes (2006), now permits a trial court to inquire into the factual basis of a legally sufficient motion for leave to withdraw on conflict of interest grounds that arise from the public defender's representation of multiple defendants. Even now the trial court need not conduct an evidentiary hearing. But the trial court is no longer bound to accept the public defender's factual representations at face value.

The same statute directs the trial court to deny a motion to withdraw for legal insufficiency or in the event the facts it finds upon review or inquiry establish that the asserted conflict "is not prejudicial to the indigent client."⁴ The statute provides, in relevant part:

If, at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, then the public defender shall file a motion to withdraw and move the court to appoint other counsel. . . . The court shall review and may inquire or conduct a hearing into the adequacy of the public defender's representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall deny the motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client.

§ 27.5303(1)(a), Fla. Stat. (2006). Under the statute, the motion should be granted if the facts establish either that a conflict of interest has already redounded to the detriment of the indigent client or rendered his or her representation inadequate; or that a substantial risk exists that the conflict of interest will materially affect the indigent client or the public defender's representation of the indigent client adversely going forward.

Where circumstances preclude the trial court's learning whether a conflict of interest has had or will have an impermissible effect, moreover, the motion for leave to withdraw should be granted. The statute is designed to protect the constitutional right to counsel.⁵ It recognizes that the trial court may not be able to ascertain whether a conflict of interest has proven, or may yet prove, harmful to the client or the client's representation. After all, the statute acknowledges the existence of confidential communications, and does not purport to abolish the attorney-client privilege or the work product privilege, both of which limit the trial court's ability to learn all the facts.

Section 27.5303(1)(a) requires denial of a legally sufficient motion only if the trial court affirmatively finds that an indigent client or his or her representation has not been and is unlikely to be prejudiced by the public defender's representation of the other client(s),⁶ i.e., that "the asserted conflict is not prejudicial to the indigent client." § 27.5303(1)(a), Fla. Stat. (2006). See generally Fed.R.Crim.P. 44(c)(2) (requiring the trial court to "inquire about the propriety of joint representation [of defendants charged jointly or being tried together] and . . . personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel." (Emphasis supplied.)); Fla. R.Crim. P. 3.150(c).

The motion counsel filed in the court below⁷ sought leave to withdraw from further representation of Mr. Scott on two bases, alleging:

2. The Public Defender's Office formerly and currently represents the confidential informant employed to gather evidence against Mr. Scott.

3. In a previous case in which the Public Defender's Office represented the confidential informant, the informant was granted a probationary sentence which was a downward departure from the guidelines based on his substantial assistance in gathering evidence against Mr. Scott to be used in this case.

4. Moreover, the Public Defender's Office currently represents the informant in a new case, as well as in a violation of probation for his case originally relating to Mr. Scott.

5. An irreconcilable conflict exists because of the downward departure that the informant received for gathering evidence against Mr. Scott, as well as the Public Defender's current representation of the informant.

The trial court did not in terms rule that the stated "grounds for withdrawal are insufficient." § 27.5303(1)(a), Fla. Stat. (2006).

But the trial judge did state that "no actual conflict" existed, that appellant and the confidential informant did not have "inconsistent interests," and that the public defender's office had not proven⁸ that appellant's defense at trial would be impaired⁹ as a result of the office's ongoing representation of the confidential informant. On this basis, the trial court denied the public defender's motion to withdraw. This was error. By requiring the public defender to represent appellant despite simultaneously representing the client whom it had apparently advised to provide assistance to the state, assistance that consisted of procuring evidence against appellant, the trial court impermissibly obligated the public defender to "serve a dual and adverse stewardship." Bellows v. State, 508 So.2d 1330, 1331-32 (Fla. 2d DCA 1987) ("Despite the fact that Bellows [the defendant] and Collins [the state's witness and public defender's client in separate violation of probation proceedings] were not codefendants (only Bellows was charged with the sale of cocaine), the public defender was representing clients with significantly conflicting interests. The key is not whether the defendants are codefendants, but, rather, whether the public defender must serve a dual and adverse stewardship."). A disqualifying conflict of interest plainly exists when the public defender represents a defendant against whom the state obtained inculpatory evidence, with the assistance of another of the public defender's clients, where the public defender's office advances the latter's interests, based upon damage the latter did to the first defendant's legal position. Here, if an assistant public defender advised...