May 7, 2004
A county may ethically establish a separate public defender office to provide representation for defendants with interests adverse to the interests of defendants represented by the original County public defender office, provided that the two offices are completely independent, do not share client information, and have separate supervisory personnel.
References: MRPC 1.7(a) and (b), 1.10(a), 1.8(f), RI-108, RI-139, RI-43, RI-4, RI-172, CI-1124, RI-89.
A County public defender office wishes to establish a separate and independent County-supported public defender office to handle cases for indigent defendants whose interests are adverse to clients represented by the original County public defender. Although separate and independent from the original County public defender office, attorneys in the proposed "conflicts" public defender office would receive their compensation from the County Board of Commissioners and would be supervised by a high-level administrator employed by the County.
The County asks whether such a separate and independent County-supported "conflicts" public defender office may ethically represent clients with interests adverse to clients of the original County public defender office, assuming the two offices are both compensated and supervised by the County.
MRPC 1.7 states:
"(a) A lawyer shall not represent a client if the representation will be directly adverse to another client, unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the other client; and
"(2) each client consents after consultation."
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
The purpose of the separate and independent public defender office envisioned by the County is to handle clients whose interests are directly adverse to the interests of clients currently represented by the original public defender office. The County thus assumes, in its question, that a disinterested attorney could not reasonably believe that the office's continued representation of the original client would not be adversely affected by taking on a codefendant charged in the same case. This is consistent with MRPC 1.7, which would require withdrawal in such a situation. RI-108, RI-139.
The County agrees that the original public defender office itself is a "firm" for purposes of MRPC 1.10(a) and it therefore declines representation of any indigent client who has interests directly adverse to a current client represented by the office, as required by MRPC 1.7. For example, if two individuals are charged in the commission of a single crime, and the office represents one of the accused, the office declines representation of the second accused person.
The County asks whether establishing a second "conflicts" office would allow them to avoid being treated as a single firm.
MRPC 1.10(a) states:
"(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2 . . . ."
The commentary for Rule 1.10(a) states:
"For the purposes of these rules, the term "firm" includes lawyers in a private firm and lawyers employed in the legal department of a corporation or other organization or in a legal services organization. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts . . . . Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers would be treated as being associated with each other can depend on the particular rule that is involved and on the specific facts of the situation."
RI-43 addressed the question of whether an entire prosecutor's office should be disqualified from a case in which the current appellate chief had served as law clerk for the judge handling the case, and written orders concerning the case as a law clerk. In R-43, the Committee concluded that a prosecuting attorney's office was a "firm" for purposes of Rule 1.10(a), but it did not address the question of whether separate units within a prosecutor's office would still be considered a single firm. Moreover, RI-43 made it clear that a properly designed "screening" system, as described in R-4, could avoid the disqualification.
R-4 involved the question of whether a medical malpractice defense attorney could join a medical malpractice plaintiff's firm that was in litigation against the former defense attorney's clients. In R-4, the Committee articulated a number of "screening" procedures that would protect against conflicts of interest, including, in relevant part, excluding the disqualified attorney from any participation in the litigation, or from receiving any information relating thereto, instructing all of the personnel in the new firm as to the screening, and physically segregating and marking screened files.
In RI-172, the Committee concluded that the entire U.S. Army Staff Judge Advocate office should be treated as a "firm" under Rule 1.10(a), and that if a lawyer in one unit of that office were disqualified from representing a client under Michigan law, the disqualification would be imputed to all other lawyers in the Staff Judge Advocate's Office. This opinion, however, does not address the situation raised by the County here, because the County envisions creating an entirely separate defender office.
CI-1124, although decided under the Code of Professional Conduct, addressed the question of whether a legal services organization could receive intake information, including asset and income data, from adverse parties, and then refer those parties to outside private counsel for representation. The Committee concluded that, once the legal services organization had acquired such information, it would need to refer both adverse parties to outside counsel, and could not choose to keep one of them, because it had received information regarding them both.
Applied to the question posed by the County public defender office, CI-1124 suggests that any "conflicts" office would need to have a completely independent "in-take" process. In addition, the original public defender office would not be able to refer a client to the "conflicts" office if the original public defender office had already received important client information.
Thus, the proposed "conflicts" public defender office, to avoid violating Rule 1.7, should be a clearly separate entity and should employ strictures that carefully screen the "conflicts" attorneys from any information derived from the clients of the office with adverse interests.
The County also asks whether the attorney in "conflicts" defender office could ethically represent a defendant with interests adverse to a defendant represented by the original defender office where both offices receive their compensation from the County Board of Commissioners and would likely be overseen by the County Executive or another high level County official or entity.
Rule 1.8(f) provides as follows:
"(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6."
As the Committee opined in RI-89, "MRPC 1.8(f) prohibits a lawyer being paid by a third party unless the client consents and there is no interference with the lawyer-client relationship, with the lawyer's independent professional judgment, or with the lawyer-client confidentiality."
Attorneys in the proposed "conflicts" office would be no more likely to violate the provisions of Rule 1.8(f) than their counterparts in the original public defender office; there is no reason to believe that their independence or professional judgment would be adversely affected by receiving compensation from the County.
With respect to supervision, while the County Executive or some other high-level official might be ultimately responsible for the supervision of both offices, it is clear that the direct supervision of attorneys within each office would need to be completely separate to preserve the independence and autonomy of each office.
In conclusion, a County may ethically establish a separate public defender office to provide representation for defendants with interests adverse to the interests of defendants represented by the original County public defender office, provided that the two offices are completely independent, do not share client information, and have separate supervisory personnel.