State v. Reddick

• Decision Date: 03 May 2000
• Docket Number: No. A00A1059.,A00A1059.
• Parties: The STATE v. REDDICK.
• Court: Georgia Court of Appeals

534 S.E.2d 473

243 Ga. App. 809

The STATE v. REDDICK.

No. A00A1059.

Court of Appeals of Georgia.

May 3, 2000.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Ellen S. Golden, Assistant District Attorneys, for appellant.

Charles R. Reddick, Homerville, for appellee.

Kermit N. McManus, District Attorney, Kenneth B. Hodges III, District Attorney, J. David Miller, District Attorney, Keith C. Martin, Solicitor, Leslie C. Abernathy, Solicitor, Carmen Smith, Solicitor, Sheryl B. Jolly, Solicitor, Wensley Hobby, Solicitor, amici curiae. ELDRIDGE, Judge.

This is an appeal from the Superior Court of Clinch County's denial of a motion made by the District Attorney of the Alapaha Judicial Circuit ("DA") to disqualify private attorney Charles Reddick from the practice of criminal law in the Alapaha Judicial Circuit because, inter alia, Reddick is a part-time district attorney pro tempore ("DA pro tem") of that circuit. We granted the DA's interlocutory appeal to address the issue of whether an attorney appointed by a presiding judge as a DA pro tem assigned pursuant to OCGA § 15-18-27(a) to prosecute criminal acts allegedly committed by a district attorney and/or his staff is precluded from the private practice of criminal law for the duration of the appointment. For the reasons that follow, we answer this question in the negative and affirm the order of the court below.¹

When events disqualify a district attorney from the prosecution of a case and require the appointment of a DA pro tem, the presiding judge from the applicable circuit may "(1) [a]ppoint a competent attorney of the circuit; (2) [c]ommand the services of a district attorney of any other accessible circuit; or (3) [m]ake a requisition to the Governor for the services of the Attorney General." OCGA § 15-18-5(a)(1)-(3). In this case, pursuant to the requirements of OCGA § 15-18-27(a), the chief judge of the Alapaha Judicial Circuit was authorized to appoint a DA pro tem after receiving an affidavit alleging indictable acts regarding the misuse of credit cards committed by the Alapaha Circuit's DA and/or staff, and finding probable cause with regard thereto. Accordingly, on August 31, 1999, the chief judge appointed private attorney Reddick as DA pro tem pursuant to OCGA § 15-18-5(a)(1). In its appointment order, the court specified that Reddick's appointment as DA pro tem was to be part time; that Reddick's duties as DA pro tem went solely to the investigation and prosecution of the specific allegations of credit card misuse against the Alapaha DA and/or his staff; and that, prior to representation of a defendant in any criminal matter during the term of his appointment, Reddick must notify the applicable court and a conflict/waiver hearing must be conducted. As a part-time DA pro tem, Reddick is paid on an hourly basis, calculated by taking the DA's annual salary and dividing it by 2,080 hours.

On September 20, 1999, a six-count indictment was handed down in the Superior Court of Clinch County against appellee-defendant Mark Alan Redd. Redd hired Reddick to represent him in the criminal case. On September 28, 1999, Reddick obtained a conflict waiver from Redd. Thereafter, on October 15, 1999, the DA's office moved to disqualify Reddick because, inter alia, he is the DA pro tem of the circuit. The trial court denied the motion. Held:

1. First, the DA contends that a DA pro tem is "automatically disqualified from representing criminal defendants per Georgia law." The DA argues that under OCGA § 15-18-5(b), a DA pro tem "is subject to all laws governing district attorneys" and that under OCGA § 15-18-10(d), no district attorney "shall engage in the private practice of law." Thus, the DA argues that under OCGA § 15-18-10(d), Reddick may not represent criminal defendants for the duration of his appointment as DA pro tem.² We do not agree.

Contrary to the DA's assertion, the Code does not contain an unqualified prohibition against a district attorney engaging in the private practice of law. What the statute says is that, "No district attorney receiving an annual salary under this Code section shall engage in the private practice of law." (Emphasis supplied.) OCGA § 15-18-10(d). It would appear that the legislature, in its wisdom, anticipated that there would be times when a DA pro tem would be needed for prosecution purposes and that such DA pro tem would necessarily be selected from among the ranks of local, private criminal lawyers, since such lawyers have the expertise in criminal law necessary to competently carry out the duties of a DA pro tem. To cut off the livelihood of the most qualified of these criminal attorneys would make it almost impossible to find a competent private attorney who would accept the position.

In order to secure competent counsel to serve as part-time [District Attorneys] it is desirable that they be permitted to supplement their incomes through the private practice of law ... [since] the disqualification of part-time [District Attorneys] and their firms may seriously hamper the trial judge in appointing competent counsel.

Thompson v. State, 254 Ga. 393, 396, 330 S.E.2d 348 (1985). Further, paragraph (1) of OCGA § 15-18-5(a), which paragraph allows a presiding judge to appoint a private attorney as a DA pro tem, would be rendered meaningless as a practical matter if such attorney is not permitted to supplement his or her income through the continued private practice of law. The rules of statutory construction preclude such interpretation. See, e.g., State v. C.S.B., 250 Ga. 261, 263, 297 S.E.2d 260 (1982) (courts must construe statutory language so as not to render it meaningless or mere surplusage).

As such, under the plain language of OCGA § 15-18-10(d) and the rules governing statutory construction, the ban against the private practice of law applies only to a district attorney who receives an annual salary and does not reach Reddick who, as a part-time DA pro tem with limited duties, is paid on an hourly basis.³

2. Next, the DA contends that Reddick is disqualified from the private practice of law because, as a DA pro tem, he is compensated with state funds, and under OCGA § 15-18-21(a), "[a]ny assistant district attorney, deputy district attorney, or other attorney at law employed by the district attorney who is compensated in whole or in part by state funds shall not engage in the private practice of law."

However, as in Division 1, supra, the DA's argument ignores an important element of the statute. Reddick may indeed be compensated with state funds, but he was appointed by the chief judge of the circuit and is clearly not "employed by the district attorney," whose office Reddick has been assigned to prosecute. Accordingly, OCGA § 15-18-21(a), which applies to lawyers employed by a district attorney, does not apply to Reddick.

3. Finally, the DA contends that a "conflict of interest" must disqualify Reddick from the representation of criminal defendants while serving as DA pro tem, since he represents the State of Georgia against criminal defendants in one capacity and represents criminal defendants against the State of Georgia in his other capacity. The DA argues that:

Loyalty to the client is the most fundamental rule of our system of justice. Chuck Reddick must be required to elect who he actually represents. "No servant can serve two masters; for either he will hate the one and love the other, or else he will be loyal to the one and despise the other." Luke 16:13.

The DA misunderstands that the "service" referenced in Luke 16:13 is from the Greek "douleuo," i.e., the service a slave owes to its master, which reference is of course completely inapplicable in the professional/legal context now before us. In the professional/legal context that is at issue here, we disagree with the DA.

The concept of a "conflict of interest" arises in connection with the attorney-client privilege and, absent an informed waiver, generally precludes an attorney from accepting as clients adverse parties in the same or a related case. See Code of Professional Responsibility, Rule 4-102(d) Standards 35-38. See Hill v. State, 269 Ga. 23, 24(2), 494 S.E.2d 661 (1998); Tilley v. King, 190 Ga. 421, 424-425, 9 S.E.2d 670 (1940); Reese v. Ga. Power Co., 191 Ga.App. 125, 127, 381 S.E.2d 110 (1989); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 123(4), 372 S.E.2d 276 (1988); Mitchell v. Mitchell, 184 Ga.App. 903, 363 S.E.2d 159 (1987); Summerlin v. Johnson, 176 Ga.App. 336, 338, 335 S.E.2d 879 (1985). The danger is two-fold: (1) that confidential information confided to the attorney by one client in the same or related case might be used against the other client, and/or (2) that circumstances might force an attorney to engage in conduct on behalf of one client in the same or related case that will injure the cause of action for his/her other client. Id.; Hill v. State, supra at 24-25, 494 S.E.2d 661. See also Pruitt v. State, 270 Ga. 745, 753(19), 514 S.E.2d 639 (1999). In short, an attorney cannot with unfettered zeal simultaneously pursue the claims of one client against his/her other client: the lawyer may consciously or unconsciously fail to aggressively represent one client to prevent harming the other client, or may consciously or unconsciously use knowledge regarding one client in aggressively pressing the other client's claims. In this case, however, defendant Redd waived any conflict with regard to Reddick's representation, and, notably, there is absolutely no contention before this Court that defendant Redd will suffer adverse consequences because Reddick is a part-time DA pro tem.⁴ Instead, the DA apparently argues that Reddick should be disqualified as Redd's defense attorney based on a general, per se "conflict of interest" due solely to Reddick's status as part-time DA pro tem. In that regard:

(a) The DA does not have standing to seek Reddick's disqualification on...