If one lawyer in a public defender's office withdraws from representing a co-defendant because of a conflict, may another lawyer from the same office take over the representation?

Plain-English summary

The facts involved a public defender representing co-defendants in a criminal case where one defendant wished to testify in a way detrimental to the other. The public defender withdrew because of the conflict, and the district judge appointed another attorney from the same public defender's office to represent the defendant. The committee was asked whether it is ethical for an attorney in the public defender's office to represent a defendant where another member of the office staff has withdrawn for a conflict of interest.

The committee applied DR 5-105(D) (if a lawyer must decline or withdraw under DR 5-105, no partner or associate of his or his firm may accept or continue the employment) and DR 5-105(B) (a lawyer shall not continue multiple employment where his independent professional judgment for one client will be or is likely to be adversely affected by representing another). The dispositive question was whether the public defender's office is a "firm" or "association" under the rules. The committee relied on Turner v. State, 340 So. 2d 132 (Fla. App. 1976), in which the Florida court held that a public defender's office is a firm within the Code of Professional Responsibility and that the Sixth Amendment guarantee of assistance of counsel contemplates that members of the same firm cannot represent conflicting interests, making it improper to appoint another lawyer from the same public defender's office to represent the conflicting interest.

The committee found no basis to treat the public defender's office differently from a law firm or association, noting that the offices are in the same building, all members have access to the same files and confidential information, the same office personnel are used, and there is overlap in sources of information including investigators and witnesses. Because the public defender's office is in the same position as a law firm, the committee held it should not be excluded from DR 5-105(D), and concluded that it is improper and a violation of the Disciplinary Rules for an attorney/public defender to represent a defendant or co-defendant where another member of the office has withdrawn because of a conflict of interest.

In practice

Under this opinion, a public defender's office is treated as a single firm for conflict purposes, so a conflict that disqualifies one assistant public defender from representing co-defendants is imputed to the entire office. Per the opinion, the analysis turns on the office's firm-like characteristics (shared building, files, confidential information, personnel, and investigative sources), and on the Sixth Amendment principle that members of the same firm cannot represent conflicting interests. The committee framed the result as necessary to maintain public confidence and avoid the appearance of impropriety.

Currency note

This opinion was issued in 1978 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The conflict and imputation rules have since been recast (compare Model Rules 1.7, 1.10, and 6.5), and some jurisdictions now treat public defender and legal aid offices differently from private firms for imputation purposes. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a public defender's office treated as one law firm for conflicts?

A: Yes. The committee held there is no basis to treat the public defender's office differently from a law firm or association under DR 5-105(D), given its shared building, files, confidential information, personnel, and investigative sources.

Q: If one assistant public defender withdraws for a conflict, can another from the office take the case?

A: No. The committee concluded that no other member of the same office may accept or continue the representation, so appointing another attorney from the public defender's office to represent the conflicting interest is improper.

Q: What authority did the committee rely on?

A: It relied on DR 5-105(B) and (D) and on Turner v. State, 340 So. 2d 132 (Fla. App. 1976), which held a public defender's office is a firm and that the Sixth Amendment contemplates that members of the same firm cannot represent conflicting interests.

Background and rules framework

The opinion applied DR 5-105(B) (continuing multiple employment that adversely affects independent judgment) and DR 5-105(D) (imputation of a required withdrawal to partners and associates) of the Code of Professional Responsibility, treating a public defender's office as a firm, and relied on Turner v. State, 340 So. 2d 132 (Fla. App. 1976). It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 5-105(B) (Code of Professional Responsibility): a lawyer shall not continue multiple employment where his independent professional judgment for a client will be or is likely to be adversely affected.
• DR 5-105(D) (Code of Professional Responsibility): when a lawyer must decline or withdraw under DR 5-105, no partner or associate of his or his firm may accept or continue the employment.

Cases:

• Turner v. State, 340 So. 2d 132 (Fla. App. 1976).

See also

• Okla. Bar Ethics Op. 280: A former associate's imputed conflict and the lawyer-witness exception
• Okla. Bar Ethics Op. 254: Partner or officemate of an assistant DA defending criminal cases
• Okla. Bar Ethics Op. 256: Refusing court appointments for indigent defendants

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-294/

Original opinion text

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

Adopted May 20, 1978

STATEMENT OF FACTS

A Public Defender is representing co-defendants who are charged with a criminal offense. One defendant desires to testify and such testimony would be detrimental to the other co-defendant. The attorney/public defender withdraws from the case because of the conflict of interest. The District Judge appoints another attorney from the Public Defender’s office to represent the defendant.

INQUIRY

Is it ethical for an attorney in the Public Defender’s office to represent a defendant charged with a criminal offense where another member of the Public Defender’s staff has withdrawn from the case because of a conflict of interest?

OPINION

Disciplinary Rules are DR 5-105(D) which provides:

“If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”

and Disciplinary Rule DR 5-105(B) provides:

“A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, ….”

Disciplinary Rule 5-105(D) requires an attorney to decline employment or to withdraw from a case when an associate or partner has withdrawn from the case under DR 5-105(B) because of a conflict of interest in representing co-defendants. The question presented to the Committee is whether the Public Defender’s office is such that it would be interpreted as a law firm or an association under the Disciplinary Rules.

The Florida Supreme Court had before it the identical questions which has been presented to the Committee.1 In the case, the Public Defender was appointed to represent multiple defendants and a conflict of interest in defending co-defendants arose. The Public Defender filed a Motion to Withdraw because of this conflict. The Motion was denied for the reason that there were separate attorneys within the Public Defender’s office who could represent the various co-defendants. The Public Defender appealed on the ground that under the Florida Code of Professional Responsibility DR 5-105(2)2 it would be unethical for a member of the Public Defender’s office to represent the defendants since another member had withdrawn because of a conflict of interest. The Court held that the Public Defender’s office was a firm within the Code of Professional Responsibility and that the Sixth Amendment guarantees of the assistance of counsel contemplates that members of the same firm cannot represent conflicting interests. Therefore, the court said it would be improper for a lawyer to be appointed from the Public Defender’s office to represent conflicting interests.

The Committee is of the opinion that there is no basis for determining that the Public Defender’s office is different from a law firm or association. The Public Defender’s office and law firms or associations are similar in that their offices are located in the same building, all members have access to the same files, have access to confidential information obtained by other members of the office, the same office personnel are utilized, and there is an overlapping of sources of information from various persons including investigators and witnesses. Since the Public Defender’s office is in the same position as a law firm they should not be excluded from DR 5-105(D).

It is essential that the public have confidence in the Public Defender’s office and the legal profession as a whole and in order to avoid the appearance of impropriety on the part of lawyers involved in the representation of criminal defendants it is imperative that individual attorneys and their associates or partners withdraw from cases wherein the possibility of impropriety might arise.

Therefore, the Legal Ethics Committee of the Oklahoma Bar Association finds that it is improper and in violation of the Disciplinary Rules for an attorney/public defender to represent a defendant or co-defendant charged with a criminal offense wherein another member of the Public Defender’s office has withdrawn from the case because of a conflict of interest.

1 Turner v. State, Fla.App., 340 So.2d 132 (1976).

2 Florida’s DR 5-105(D) is identical to Oklahoma’s DR 5-105(D).