Could a newly appointed Nebraska county public defender seek post-conviction relief by attacking the former public defender office's effectiveness?

Plain-English summary

A former county public defender and assistants represented a first-degree murder defendant who received a death sentence. After the office's entire personnel changed, the successor public defender considered a post-conviction petition alleging ineffective assistance by the predecessor office.

The committee emphasized that the client's interests had to prevail over protection of the public defender office's reputation. Former DR 5-101 addressed personal interests affecting judgment, and DR 5-105(D) imputed conflicts among affiliated lawyers.

Some authorities declined automatic imputation across public defender organizations or considered office structure. Here, every lawyer had changed, making the issue closer than one involving current colleagues.

The committee nevertheless found a potential conflict because the proposed allegations attacked the institutional reputation of the office now headed by successor counsel. The former Canon 9 appearance standard and need for public confidence reinforced disqualification.

A lawyer outside the public defender office therefore had to pursue the post-conviction matter.

Currency note

This opinion was issued in 1987, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent public-defender conflict, institutional-imputation, post-conviction, and capital-representation rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. The 2005 adoption date is stated in Nebraska Ethics Advisory Opinion 06-12.

Common questions

Q: Had the successor defender worked with the allegedly ineffective lawyers?

A: No. The office's personnel had completely changed.

Q: What conflict remained?

A: The successor would attack the effectiveness and reputation of the office the successor now led.

Q: Did the committee apply an automatic rule without discussion?

A: No. It acknowledged contrary authorities and described the question as close, then relied on conflict and appearance concerns.

Q: Who should handle the post-conviction claim?

A: A lawyer outside the public defender office.

Background and rules framework

The opinion treated institutional loyalty and public appearance as potential constraints on independent post-conviction advocacy, even without shared personnel or direct personal involvement.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 9, DR 5-101(A)-(B), DR 5-105(D), EC 5-22, EC 5-24, EC 9-1, and EC 9-2

Other authority:

• New York Ethics Opinion 533
• ABA Informal Opinion 1309
• People v. Wilkins, 28 N.Y.2d 53, 268 N.E.2d 756 (1971)
• State v. Robinson, 79 Ill. 2d 149, 402 N.E.2d 157 (1979)
• State v. Thompson, 132 Ill. App. 3d 335, 477 N.E.2d 532 (1985)

See also

• Nebraska Ethics Op. 88-1: Screening within a public defender office
• Nebraska Ethics Op. 90-1: Public defender habeas conflict
• Oregon Ethics Op. 2005-160: Former appellate public defender conflicts

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 87-6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Nebraska Ethics Advisory Opinion for Lawyers No. 87-6

UNDER THE FACTS PRESENTED, A COUNTY PUBLIC DEFENDER REPRESENTING A DEFENDANT CONVICTED FOR FIRST-DEGREE MURDER SHOULD NOT, FOR THE PURPOSES OF SEEKING POSTCONVICTION RELIEF ON BEHALF OF THE DEFENDANT, ALLEGE THAT THE PRIOR COUNTY PUBLIC DEFENDER AND HIS STAFF PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL EVEN THROUGH THE PRESENT PUBLIC DEFENDER WAS NEVER ASSOCIATED WITH THE PRIOR PUBLIC DEFENDER.

FACTS

Attorney A was a county public defender and was appointed to represent a defendant who was charged with first-degree murder. Attorney A's assistants were Attorneys B and C and they assisted Attorney A in undertaking the defense. The defendant was eventually sentenced to the death penalty and the matter was appealed to the State Supreme Court. Prior to completion of the proceedings in the State Supreme Court, Attorneys A and B withdrew as public defenders. Attorney C was appointed by the county board to complete a reply brief and a brief for rehearing in the State Supreme Court. Attorney C then also left the public defender's office. Attorney D was appointed the county public defender the day after Attorney A withdrew. Upon the denial of rehearing in the State Supreme Court, Attorney D filed a petition for writ of certiorari with the United States Supreme Court, which was denied.

Attorney D now wishes to file a petition for postconviction relief alleging that the defendant was denied effective assistance of counsel by the former public defender's office, namely Attorneys A and B.

QUESTION PRESENTED
May the current county public defender, seeking postconviction relief for the defendant, ethically allege that the former county public defender provided ineffective assistance of counsel to the defendant?

DISCUSSION

This situation present a potential conflict of interest for the present county public defender arising out of his assertion on behalf of the defendant, as a basis for postconviction relief, that the former public defender and his staff provided ineffective assistance of counsel to the defendant in the trial court and appellate proceedings. In such a case, the interests of the client must be deemed superior to those of upholding the reputation of the county public defender's office. EC 5- 22 and EC 5-24 caution the lawyer to maintain his professional independence regardless of whether or not he receives his compensation directly from the client. DR 5-101(A) states:

Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

DR 5-101(B) prohibits a lawyer from accepting employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness. DR 5-105(D) indicates that when a lawyer is disqualified because of a conflict of interest, the disqualification runs to any partner or associate, or any other lawyer affiliated with the attorney or his firm.

In this case, it would clearly be a conflict of interest for Attorney A to assert, on behalf of the defendant seeking postconviction relief, that he provided ineffective assistance of counsel.

The New York State Bar Association, in Opinion 533, Lawyers Manual on Professional Conduct, 801:6104, stated as follows:

"A public defender may not represent a client in an appeal based upon ineffective assistance of trial counsel, where the trial was conducted by another lawyer in the public defender's office who has since left the office. It is a lawyer's duty to exercise professional judgment independently and zealously within the bounds of the law, solely for the client's benefit, and free of compromising influences and loyalties.
Where a lawyer must attack his own competence as trial counsel, there is a personal interest that is at odds with the client's right to impartial and zealous representation, and public confidence in our justice system must suffer. If it is improper for one staff member to represent a claim in a particular matter, all are subject to the same prohibition. DRs 5-101, 5-105(D); ECs 5-1, 7-1, 9-2. (6/8/81)"

The case at hand differs from New York Opinion 533 cited above in that in this case the entire membership of the public defender's office has been changed. Nonetheless, a potential conflict of interest exists in that the reputation of the public defender's office is being impugned by the proposed allegations as to inadequacy of the previous holders of the office.

Other authorities have held that the application of the imputed disqualification rule to public defender and legal service organizations should depend upon the structure of the office. People v. Wilkins, 28 N.Y.2d 53, 268 N.E.2d 756 (1971); ABA Informal Opinion 1309 (1975). At least one court has rejected a per se imputed disqualification rule regarding public defenders, balancing the "remote" possibility of a conflict of interest against the fear that it would be necessary to appoint counsel with no experience in criminal matters, raising the question of competency of counsel. State v. Robinson, 79 Ill.2d 149, 402 N.E.2d 157 (1979). In another case, the court applied the per se rule to a public defender's office based both on a conflict of interest and the appearance of impropriety proscribed in Canon 9. State v. Thompson, 132 Ill. App. 3d 335, 477 N.E.2d 532 (1985). See, generally, Annot., 18 A.L.R.4th 360 (1982) (circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel--state cases).

While the question is close, the Committee concludes that Attorney D, as the newly appointed public defender, should not handle the matter under the rule of Canon 9 that: "A Lawyer Should Avoid Even the Appearance of Professional Impropriety."

EC 9-1 states:

"Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession."

EC 9-2 states in part:

"When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession."

CONCLUSION

Under the facts presented, it is the opinion of the Committee that a county public defender representing a defendant convicted of first-degree murder should not, for the purposes of seeking postconviction relief on behalf of the defendant, allege that the prior county public defender and his staff provided ineffective assistance of counsel even though the present public defender was never associated with the prior public defender. A lawyer other than the Public Defender should be appointed to handle the matter.

Nebraska Ethics Advisory Opinion for Lawyers No. 87-6