IN RE: FORMAL ADVISORY OPINION 10–1. (2013)

Responding to a letter from the Georgia Public Defender Standards Council (GPDSC), the State Bar Formal Advisory Opinion Board (Board) issued Formal Advisory Opinion 10–1 (FAO 10–1), answering the following question in the negative:

May different lawyers employed in the circuit public defender office in the same judicial circuit represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so?

FAO 10–1 was published in the June 2010 issue of the Georgia Bar Journal and was filed in this Court on June 15, 2010. On July 5, 2010, the GPDSC filed a petition for discretionary review which this Court granted on January 18, 2011. This Court posed the following question to the parties for briefing:

May lawyers employed in the circuit public defender office in the same judicial circuit represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so?

The Court heard oral argument on January 10, 2012. For reasons set forth below, we answer the question in the negative and hereby approve FAO 10–1 pursuant to State Bar Rule 4–403(d).

1. At the heart of FAO 10–1 is the constitutional right to conflict-free counsel and the construction of Rule 1.10(a) of the Georgia Rules of Professional Conduct. “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220. Indeed, this Court has stated in no uncertain terms that, “Effective counsel is counsel free from conflicts of interest .” Garland v. State, 283 Ga. 201, 657 S.E.2d 842 (2008). In keeping with this unequivocal right to conflict-free representation, Rule 1.10(a) provides as follows:

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 Rule 1.7: Conflict of Interest: General Rule, 1.8(c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.

(Emphasis in original.) Comment [1] concerning Rule 1.10 defines “firm” to include “lawyers ․ in a legal services organization.” Comment [3] further provides “Lawyers employed in the same unit of a legal service organization constitute a firm,․”

Under a plain reading of Rule 1.10(a) and the comments thereto, circuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit's public defender's office¹ is a “firm” as the term is used in the rule. This construction is in keeping with our past jurisprudence. Cf. Hung v. State, 282 Ga. 684(2), 653 S.E.2d 48 (2007) (attorney who filed motion for new trial was not considered to be “new” counsel for the purpose of an ineffective assistance of counsel claim where he and trial counsel were from the same public defender's office); Kennebrew v. State, 267 Ga. 400, 480 S.E.2d 1 (1996) (appellate counsel who was from the same public defender office as appellant's trial lawyer could not represent appellant on appeal where appellant had an ineffective assistance of counsel claim); Ryan v. Thomas, 261 Ga. 661, 409 S.E.2d 507 (1991) (for the purpose of raising a claim of ineffective assistance of counsel, “attorneys in a public defender's office are to be treated as members of a law firm ․”); Love v. State, 293 Ga.App. 499, 501 at fn. 1, 667 S.E.2d 656 (2008). See also Reynolds v. Chapman, 253 F.3d 1337, 1343–1344 (11th Cir.2001) (“While public defenders' offices have certain characteristics that distinguish them from typical law firms, our cases have not drawn a distinction between the two.”). Accordingly, FAO 10–1 is correct inasmuch is it concludes that public defenders working in the same judicial circuit are “firms” subject to the prohibition set forth in Rule 1.10(a) when a conflict exists pursuant to the conflict of interest rules listed therein, including in particular Rule 1.7.² That is, if it is determined that a single public defender in the circuit public defender's office of a particular judicial circuit has an impermissible conflict of interest concerning the representation of co-defendants, then that conflict of interest is imputed to all of the public defenders working in the circuit public defender office of that particular judicial circuit. See Restatement (Third) of the Law Governing Lawyers § 123(d)(iv) (“The rules on imputed conflicts ․ apply to a public-defender organization as they do to a law firm in private practice ․”).

2. Despite the unambiguous application of Rule 1.10(a) to circuit public defenders, GPDSC complains that FAO 10–1 creates a per se or automatic rule of disqualification of a circuit public defender office. We disagree. This Court has stated that “[g]iven that multiple representation alone does not amount to a conflict of interest when one attorney is involved, it follows that counsel from the same [public defender office] are not automatically disqualified from representing multiple defendants charged with offenses arising from the same conduct.” Burns v. State, 281 Ga. 338, 340, 638 S.E.2d 299 (2006) (emphasis in the original). Here, Rule 1.10 does not become relevant or applicable until after an impermissible conflict of interest has been found to exist. It is only when it is decided that a public defender has an impermissible conflict in representing multiple defendants that the conflict is imputed to the other attorneys in that public defender's office. Thus, FAO 10–1 does not create a per se rule of disqualification of a circuit public defender's office prior to the determination that an impermissible conflict of interest exists.

Although a lawyer (and by imputation his law firm, including his circuit public defender office) may not always have an impermissible conflict of interest in representing multiple defendants in a criminal case, this should not be read as suggesting that such multiple representation can routinely occur. The Georgia Rules of Professional Conduct explain that multiple representation of criminal defendants is ethically permissible only in the unusual case. See Rule 1.7, Comment [7] (“The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.”). We realize that the professional responsibility of lawyers to avoid even imputed conflicts of interest in criminal cases pursuant to Rule 1.10(a) imposes real costs on Georgia's indigent defense system, which continually struggles to obtain the resources needed to provide effective representation of poor defendants as the Constitution requires. See Gideon v. Wainwright, 373 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But the problem of adequately funding indigent defense cannot be solved by compromising the promise of Gideon. See Garland v. State, 283 Ga. 201, 204, 657 S.E.2d 842 (2008).

Since FAO 10–1 accurately interprets Rule 1.10(a) as it is to be applied to public defenders working in circuit public defender offices in the various judicial circuits of this State, it is approved.³

Formal Advisory Opinion 10–1 approved.

PER CURIAM.

All the Justices concur.