State v. Veale

• Decision Date: 19 January 2007
• Docket Number: No. 2006–043.,2006–043.
• Citation: 919 A.2d 794,154 N.H. 730
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Scott W. VEALE.

154 N.H. 730

919 A.2d 794

The STATE of New Hampshire

v.Scott W. VEALE.

No. 2006–043.

Supreme Court of New Hampshire.

Argued: Nov. 14, 2006.

Opinion Issued: Jan. 19, 2007.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

GALWAY, J.

The appellate defender has moved to withdraw from representing the defendant, Scott W. Veale, in this matter due to an alleged conflict of interest. For the reasons that follow, we deny the motion without prejudice, and remand in part.

The following facts are not disputed. In June 2003, the defendant was indicted for one count of timber trespass contrary to RSA chapter 227–J (2000 & Supp.2003) and one count of theft by unauthorized taking contrary to RSA 637:3 (1996). Prior to his trial on those charges, the defendant's court-appointed public defender moved for, and was granted, a competency evaluation. As a result of the evaluation and after a hearing, the Trial Court (Barry, J.) found the defendant incompetent to stand trial and not restorable to competence. In response to the defendant's motion, the trial court dismissed the charges. See RSA 135:17–a (2005).

The defendant filed a pro se notice of appeal in this court, claiming, among other things, that his trial counsel had provided ineffective assistance. The appellate defender was appointed to represent the defendant on appeal. The appellate defender subsequently moved to withdraw, contending that because the defendant had raised a claim of ineffective assistance against a public defender, it could not represent the defendant due to a conflict of interest. The State and the appellate defender submitted memoranda and presented oral argument on the issue of whether the appellate defender may represent a client who has raised a claim of ineffective assistance against a public defender, an issue of first impression in this state.

The appellate defender argues, and the State agrees, that it may not represent clients who have challenged the effectiveness of a public defender's assistance. According to the appellate defender, its office and that of the public defender are, in essence, a single office or "firm," and the rules of professional conduct relating to conflicts of interest apply to its "firm" in the same way that they apply to private firms. Therefore, because the conflict rules would require the disqualification of the attorneys in a private firm in similar circumstances, the appellate defender is disqualified in this case.

As to whether the appellate defender and the public defender constitute a single firm, we note that we have never precisely defined the term "firm" for the purpose of applying the rules of professional conduct. While we have not defined the term, the ABA Model Code Comments to New Hampshire Rule of Professional Conduct 1.10 do. We have not formally adopted the ABA Model Code Comments, but we have previously looked to them for guidance, see, e.g., Franklin v. Callum, 146 N.H. 779, 783, 782 A.2d 884 (2001), and we do so here.

The definition in the comments to Rule 1.10 does not give a concise, bright-line rule for determining what constitutes a firm. The comments note that the term includes lawyers working in a legal services organization, but that the actual existence of a firm depends upon the specific facts. Therefore, it sets forth various characteristics to consider when determining whether a firm exists. For instance, if a group of lawyers conducts itself in a manner suggesting that it is a firm, or presents itself to the public in such a manner, it ought to be considered a firm. Also relevant is whether the lawyers in the group have mutual access to confidential information concerning the clients they serve, because such access indicates that the group functions as a firm.

We think it obvious that the appellate defender and the public defender are, individually, legal services organizations that qualify as firms. The question, therefore, is whether the two offices are sufficiently intertwined that they function as one firm. According to the appellate defender, the deputy appellate defender and assistant appellate defenders are employees of the public defender, and receive their salaries and benefits from the public defender. Also, the offices of the public defender and appellate defender regularly share personnel, with public defenders serving as appellate defenders on rotations lasting not more than two years. Even when a public defender is serving as an appellate defender, he or she might still be actively representing clients at the trial level, and might retain administrative duties within the public defender's office. Additionally, public defenders and appellate defenders work closely together and share confidential information. Attorneys in the two offices are often trained and educated together using materials and services available only to employees of the public defender. Accordingly, the appellate defender contends, its office and the public defender's office should be viewed as a single firm.

Given the current structure of the offices of the public defender and appellate defender, with their close, and often overlapping, personnel and functions, we conclude that they qualify as a single firm for the application of the rules of professional conduct. The attorneys of the offices regularly interact with each other and share confidential information and resources. Also, the attorneys of both offices are employed and paid by a common employer, the public defender. Therefore, they conduct themselves as a single firm. Finally, the public defender's website states that it operates the appellate defender program. See http://www.nhpd.org/aboutnhpd.htm (last visited Dec. 14, 2006). Thus, the offices hold themselves out to the public as a single firm.

The appellate defender next contends that the rules of professional conduct regarding conflicts of interest ought to apply to it in the same manner as they apply to private firms. As noted, this is an issue of first impression in New Hampshire and therefore we look to other jurisdictions that have addressed the issue for guidance. Some jurisdictions have concluded that the conflict of interest rules do not apply to public defender organizations in the same way, or to the same degree, as they do to private firms. See, e.g., People v. Banks, 121 Ill.2d 36, 117 Ill.Dec. 266, 520 N.E.2d 617, 619 (1987) ; Asch v. State, 62 P.3d 945, 953 (Wyo.2003). Other courts have reached the opposite conclusion. See, e.g., Borden v. Borden, 277 A.2d 89, 92 (D.C.1971) ; McCall v. District Court, 783 P.2d 1223, 1227 (Colo.1989). Having reviewed these decisions, we believe the better rule is not to exempt the public defender and appellate defender from the operation of the conflict of interest rules for claims of ineffective assistance of counsel.

Courts that do not apply the rules to public defender organizations in the same way as to private firms often conclude that because there is no financial interest at stake, a public defender or appellate defender will not be influenced in the same way as a private attorney, and thus the conflict rules need not be applied equally. See Banks, 117 Ill.Dec. 266, 520 N.E.2d at 620. Alternatively, those courts find that disqualifying a public defender or appellate defender under the same rules as private attorneys could deprive litigants of access to the most competent counsel. See Asch, 62 P.3d at 953. We do not find either rationale persuasive.

As to the first concern, financial interests are not the only interests that could influence an attorney, and, arguably, are not the most powerful influences.

It might be argued that there are no conflict of interest questions in the public defender context because of the absence of economic interest in challenging or refraining from challenging the conduct of trial counsel. However, this view completely ignores the fact that the same subtle but real non-economic pressures present in private practice are equally operative in a public defender service. After all, the rules concerning conflict of interest operate on and are enforced against lawyers and not against public or private law firms. By their nature, the non-economic conflicts—friendship, loyalty, pride, fear of ostracism or retaliation—operate with equal vigor on the individual lawyer in the public firm. It is he who feels the conflict, not the form of his law association, upon whom the ethical considerations must prevail.

State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784, 788 (1994) (Wright, J., dissenting) (quotation and emphasis omitted); see also Cannon v. Mullin, 383 F.3d 1152, 1173 (10th Cir.2004) ("An understandable, although inappropriate, regard for collegiality may restrain appellate counsel from identifying and arguing trial-attorney error."). Thus, although financial benefits might not be at stake, the relations between the offices and the individual attorneys would be strained and public confidence in the lawyers of the public defender and the appellate defender would be undermined. Moreover, as noted by the Colorado Supreme Court, "notwithstanding the vigor and skill with which the appellate division attorney might present the ineffective assistance of counsel argument, the conflict of loyalties inherent in the attorney's role would make the quality of his or her representation, and thus the fairness and impartiality of the appellate process, necessarily suspect in the public eye." McCall, 783 P.2d at 1228. Therefore, we find unpersuasive the argument that a lack of economic interest should exempt the public defender and appellate defender from the operation of the conflict of interest rules when ineffective assistance of a public defender is raised. See Restatement (Third) of The Law Governing Lawyers § 123 cmt. d(iv) (1998).

Regarding the second...