Struggling with Rules on When Public Defenders Can Represent Co-Defendants

As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the Fulton County Daily Report on September 23, 2011.

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Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the same circuit to represent co-defendants unless specific conflicts of interest are identified.

The proposed amendment to the Georgia Rules of Professional Conduct on imputed disqualification, also known as Rule 1.10, states: “(d) A lawyer representing a client of a public defender office shall not be disqualified under this rule because of the representation by the office of another client in the same or a substantially related matter unless there is a conflict as determined by Rules 1.7, 1.8(f) or 1.9,” which determine conflicts of interest, according to Bar President Kenneth L. Shigley.

Backers of the amendment hope it serves as a compromise in a debate that has burned hot since April 2010, when the bar approved a formal advisory opinion prohibiting intra-circuit representation of indigent criminal co-defendants. Critics of that opinion, which is pending review by the state Supreme Court, said it would result in higher costs for the cash-strapped indigent defense system as more expensive outside lawyers would need to be hired to resolve conflicts.

But some lawyers questioned whether the proposed amendment would have any significant effect.

On Wednesday, Shigley said the new rules change allowing intracircuit representation of co-defendants should help public defender offices handling cases with multiple defendants where there is only a potential conflict.”The proposed amendment to Rule of Professional Conduct 1.10 is a measured, moderate approach to representation of multiple defendants in the public defender context,” Shigley said in a written statement. “It recognizes the need for practical flexibility in administration of the statewide public defender system, without diminishing lawyers’ ethical standards or defendants’ rights to vigorous, conflict-free representation.”

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The proposed amendment will go to the bar’s Executive Committee, which is scheduled to meet on Oct. 6 in Macon. Then, it would need the approval of the bar’s Board of Governors, which will convene on Oct. 29 at Jekyll Island, and finally the state Supreme Court before going into effect.

The state high court agreed to review the formal advisory opinion last year, but in August it delayed any decision until January. Members of the bar, as well as the Georgia Public Defender Standards Council, began publicly discussing a rules change that would have exempted public defenders from the conflict rules applied to private firms late this summer.

Georgia Public Defender Standards Council Director W. Travis Sakrison spoke against the formal advisory opinion during Wednesday’s hearing of the Disciplinary Rules and Procedures Committee.

According to Sakrison, the formal advisory opinion would require all public defender offices to divest themselves immediately of all co-defendants in cases where there may be a potential conflict. That rule would balloon the number of conflict cases and drain the public defender system of resources, he said. The estimated cost of finding new conflict counsel would have required the GPDSC to ask the Legislature for millions more in its budget, he said.

Instead, many circuit public defenders wanted their offices to have the ability to represent co-defendants up until the point an actual conflict arose, as long as proper ethical screens, such as separate computers and filing areas, were in place the entire time. And then, if there were an actual conflict, the public defender office could retain one of the co-defendants.

But supporters of the formal advisory opinion said the opinion supported the existing rules, which already outline conflicts and are meant to ensure adequate representation of indigent criminal defendants—a statement the Disciplinary Rules and Procedures Committee chairman, John G. Haubenreich, agreed with on Wednesday.” . . . .