Are conflicts imputed across all Virginia public defender offices and capital defense units under one commission, or is each office a separate firm for conflict purposes?

Plain-English summary

The Public Defender Commission oversees Virginia's public defender offices and is creating regional Capital Defense Units (CDUs) to represent indigent capital defendants statewide. The CDUs are housed separately from the public defender offices, but both are tied to the Commission through appointments and salaries. The committee was asked whether this structure imputes conflicts across all offices under the Commission, forcing one office or the CDU to withdraw, in two scenarios: a public defender who once represented (on unrelated matters) a victim or witness now adverse to a capital defendant represented by another office, and two capital co-defendants represented by a public defender office and a CDU in the same jurisdiction.

On the first scenario, the committee restates that representing a client adverse to a former client on an unrelated matter is not a conflict (LEO 1666; Mackall v. Commonwealth), unless the current defense would require using the former client's information protected by Rule 1.6 or 1.8(b). On co-defendants, there is no per se bar on one lawyer representing co-defendants charged with the same crime, but loyalty, conflict, and confidentiality problems often make it improper, particularly where one co-defendant will testify against the other (LEO 986); a single office cannot represent two co-defendants.

The core analysis is imputation under Rule 1.10. The committee opines a public defender office is a "firm" (shared resources, mutual access to information, holding out as an entity; NC RPC 65). But it treats separate offices and CDUs as separate firms, distinguishing them from multiple offices of a private firm: they do not share client information or files, the Commission does not control case acceptance or handling, and there is no fee- or profit-sharing. With separate housing, secure computer systems, and an enforced conflicts-checking policy, one office's conflict is not imputed to another under Rule 1.10. The committee premises this on the practice that each public defender (not the Commission) sets subordinate compensation and discipline, and cautions that a lawyer moving between offices may carry Rule 1.7 or 1.9 conflicts.

Currency note

This opinion was issued in 2003. Virginia's conflict and imputation rules, the public defender statutes, and Commission practice may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that imputation under Rule 1.10 follows the real structure: a public defender office is one firm, but autonomous offices and CDUs that keep files and client information walled off are separate firms whose conflicts are not shared. The conclusion is conditioned on genuine separation (separate housing, secure systems, enforced conflict checks) and on the Commission not controlling individual representations; if those premises change, or if a lawyer moves between offices, the conflicts analysis must be redone.

Common questions

Q: Is a public defender office a "firm" for conflict purposes?

A: Yes. The committee opines a public defender office is a firm under Rule 1.10 based on shared resources, mutual access to client information, and holding itself out as an entity devoted to indigent defense.

Q: Are conflicts imputed across all offices under the Public Defender Commission?

A: No, provided the offices are genuinely separate. The committee treats separate offices and CDUs as autonomous firms that do not share files or client information, so one office's conflict is not imputed to another under Rule 1.10.

Q: Can one office represent two capital co-defendants?

A: No. While there is no per se bar on representing co-defendants, a single office cannot represent two co-defendants in such a case; the second defendant would be handled by a separate office or CDU.

Q: What if a lawyer moves from one office to another?

A: The committee cautions that a lawyer moving between offices may carry Rule 1.7 or 1.9 conflicts that must be addressed (see Comments 3-5 to Rule 1.9 on lawyers moving between firms).

Background and rules framework

The opinion interprets Rule 1.10 (Model Rule 1.10; imputed disqualification and the definition of a firm), Rule 1.7 (Model Rule 1.7; current-client conflicts and co-defendant representation), Rule 1.9 (Model Rule 1.9; former-client conflicts), Rule 1.6 (Model Rule 1.6; confidentiality), and Rule 1.8(b) (Model Rule 1.8; use of client information).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 / Virginia Rule 1.10 and Comment 1 (imputed disqualification; definition of a firm)
• Model Rule 1.7 / Virginia Rule 1.7(b) (current-client conflicts; co-defendants)
• Model Rule 1.9 / Virginia Rule 1.9(a) (former-client conflicts)
• Model Rule 1.6 / Virginia Rule 1.6(a) and Model Rule 1.8 / Virginia Rule 1.8(b) (confidentiality; use of client information)

Statutes:

• Virginia Code Sections 19.2-163.2, 19.2-163.6, 19.2-163.7, 19.2-163.8 (Public Defender Commission and capital defense)

Cases:

• Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925 (1989), no withdrawal required for prior unrelated representation of a witness
• People v. Robinson, 79 Ill. 2d 147 (1980), public defender office not disqualified by one lawyer's conflict

Other opinions cited:

• Virginia LEOs 1666, 986, 1181 (former clients, co-defendants); NC RPC 65; Michigan Op. RI-249; California Formal Op. 1986-90; ISBA Op. 85-14

See also

• VA LEO 1796: Defense Lawyer Representing Two Co-Defendants
• VA LEO 1810: Guardian Ad Litem Conflict and Imputation Through a Former Partner
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1776.pdf

Original opinion text

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

Committee Opinion
May 19, 2003
LEGAL ETHICS OPINION 1776
AMONG

POTENTIAL CONFLICT OF INTEREST
CAPITAL DEFENSE UNITS.

You have presented a hypothetical situation in which a Public Defender has represented, on
unrelated matters, a victim or a witness in a capital murder case and received confidential
information during the representation adverse to a capital defendant now represented by another
Public Defender’s office or a newly created Capital Defense Unit (CDU) 1. Your inquiry presents
another situation involving two codefendants charged with capital murder who are represented by
a Public Defender’s office and a CDU in the same jurisdiction.
As an independent judicial branch agency, the Public Defender Commission oversees all the
Public Defender offices in the state. 2 The Public Defender offices provide representation only in
the specific jurisdictions where the individual offices are located. The Commission, however,
does not involve itself in cases and allows the Public Defender offices to operate autonomously.
The establishment of Capital Defense Units (CDUs) will provide representation throughout the
state, including those served by a Public Defender office. The CDUs will be separately housed
from the Public Defender offices, but both are connected by their individual relationships to the
Commission (appointments, salaries, etc.).
1

By the end of fiscal year 2004, the Public Defender Commission is “to establish four
regional capital defense units” (CDUs). Va. Code § 19.2-163.2 (10). The primary purpose of the
CDU is to represent indigent capital defendants, but the CDU may also act as a resource for
private attorneys appointed to represent capital defendants.
2

The Public Defender Commission was established in 1972 and is currently composed
of nine members appointed by the Speaker of the House of Delegates for staggered terms of three
years. The duties of the Commission are set forth in Virginia Code § 19.2-163.2 and include
inter alia, the establishment of Public Defender offices in various locations of the
Commonwealth, appointing a Public Defender for each office, and “fix[ing] the compensation
for each Public Defender and all personnel in each Public Defender office.” The Public
Defenders serve at the pleasure of the Commission. Va. Code § 19.2-163.6 (authorizes the
Commission to “appoint and employ and, at pleasure remove, an executive director, counsel and
such other persons as it may deem necessary; and to determine their duties and fix their salaries
or compensation within the amounts appropriated therefore.”). The Commission currently has
twenty-one Public Defender offices around the state. Pursuant to Va. Code § 19.2-163.2, the
overall administrative management of Public Defender offices and Regional Capital Defense
units is the responsibility of the Public Defender Commission. However, by written policy, each
Public Defender Office and Capital Defense Unit operates independently of all other offices
insofar as the representation of clients is concerned and cannot share or divulge information
which might create conflicts of interest with regard to clients represented by other offices. See
Public Defender Commission Policies and Procedure Manual, Chapter 1 at 1 (Revised January 1,
2003).

Committee Opinion
May 19, 2003

Under the facts you have presented, you have asked the committee to opine as to whether this
organizational structure creates conflicts of interest imputed to all offices under the oversight of
the Public Defender Commission, thereby requiring either the CDU or the Public Defender
Office to withdraw from representation.
The Virginia Rules of Professional Conduct that are relevant to your inquiry are the following:
Rule 1.6(a) stating a lawyer must maintain confidentiality of information; Rule 1.7 (b)(1) and (2)
prohibiting a lawyer from simultaneous representation of multiple parties, such as co-defendants
unless the lawyer believes that neither client will be adversely affected from the representation
and both clients consent after disclose is made; Rule 1.8 (b) prohibiting a lawyer from using
client information for one’s own or a third party’s advantage; Rule 1.9(a) prohibiting a lawyer
from representing a client adverse to a former client in the same or substantially related matter;
and Rule 1.10(a) prohibiting all lawyers in a firm from representing a client when any individual
lawyer practicing alone, would be prohibited from doing so.
In regard to your first inquiry, the committee has previously opined that if an attorney
represents a client adverse to a former client on a matter unrelated to the previous representation,
then no conflict exists. The lawyer may represent a client, but he may not use in his defense, the
confidences acquired while representing other former clients, unless disclosure and consent
requirements are met. LEO 1666 (1996). See also, Mackall v. Commonwealth, 236 Va. 240, 372
S.E.2d 759 (1988), cert. denied 492 U.S. 925 (1989) (attorney for murder defendant was properly
denied his motion to withdraw based on having previously represented one of the
Commonwealth’s witnesses on an unrelated matter). Therefore, in the first scenario of your
inquiry, there is no conflict if a Public Defender is defending a client adverse to a former client
represented by that office, unless the defense of the current client would require the use of
information obtained in the representation of the former client that is protected under Rules 1.6
or 1.8 (b).
As to your second inquiry, the Virginia Rules of Professional Conduct do not impose a per se
rule prohibiting one attorney or law firm from representing two or more co-defendants charged
with the same crime. In some cases, representation of co-defendants charged with the same
criminal offense may be appropriate, but in other cases problems involving loyalty, conflicts and
confidentiality would make such representation improper. For example, the committee has
previously opined that conflicts and confidences and secrets issues arise when an attorney
undertakes to represent co-defendants in a criminal matter, especially when one of the codefendants, pursuant to an agreement with a prosecutor, will testify against the other. In LEO
986, an attorney represented two co-defendants on charges arising out of the same criminal
conduct. One of the co-defendants entered into a plea agreement with the Commonwealth
agreeing to cooperate by testifying against the other in exchange for a suspended sentence. The
plea bargaining defendant obtained new counsel, but the attorney continued to represent the other
co-defendant. The Committee concluded that the testifying co-defendant was a former client and
that the trial of the other co-defendant at which the former client was expected to testify was
substantially related. DR:5-105(D) [now Rule 1.9]. Since the interests of the former client and
the client standing trial were adverse, the attorney could not continue to represent the client

Committee Opinion
May 19, 2003
standing trial without the consent of the former client after full disclosure. In addition, the
Committee opined that there was a grave risk that DR4-101 [now Rule 1.6] would be violated if
the attorney continued to represent the other client facing trial. Continued representation would
also place the attorney in the untenable position of having to cross-examine and impeach his
former client at trial in order to defend the existing client. See, e.g., LEO 1181.
The Committee notes that if counsel has been appointed by a court 3 from a Public Defender’s
office and/or a CDU to represent one or more capital murder defendants, the Commission’s
policy would require that each office operate independently, and they could not share any
information that might in any way create a conflict of interest. By written policy, while the
Commission exercises overall administrative management of the Public Defender offices and
Regional Capital Defense Units, each office acts independently of all other offices insofar as the
representation of clients is concerned and refrains from sharing or divulging information that
would in any way result in a conflict of interest. 4 By maintaining discrete confidential files, the
various units under the general oversight of the
Commission can successfully avoid conflicts of interest. In the event of multiple defendant
cases, two or more defendants cannot be represented by a single office. In particular, the CDU’s
ability to maintain independence from the Public Defenders Offices will prevent vicarious
disqualification for conflicts of interest. The CDU, therefore, must maintain a separate identity
from the Public Defenders Offices in order to avoid imputed disqualification.
The first question to determine is whether a Public Defender office is considered to be a law
firm, for conflict purposes. Firms are defined in Rule 1.10, Comment [1] of the Virginia Rules of
Professional Conduct as those practitioners that hold themselves out to the public as such, have a
formal agreement with terms, and have mutual access to client information. This definition
however, is fact specific, and requires a case-by-case review. Previous opinions have not
addressed this particular issue, but the North Carolina State Bar opined that a “Public defender’s
office should be considered as a single law firm, due to shared office space and clerical staff
under the direction of the Public Defender.” See NC Ethics Opinion RPC 65 (1989).

3

Currently, indigent criminal representation employs both local Public Defender offices
and court-appointed private attorneys. Virginia Code § 19.2-163.7 requires the circuit court to
appoint counsel for an indigent capital defendant from the list of attorneys prepared by the
Commission. However, Virginia Code § 19.2-163.8 permits the court to appoint an attorney not
on the list if the attorney possesses the qualifications set by the Commission for indigent capital
defense.
4

The committee does not mean to suggest that attorney-to-attorney consultations are
prohibited. Under Rule 1.6, Comment [7a], the committee realizes the need for attorneys to
consult with one another for educational and training purposes and to competently represent a
client’s interests. A lawyer who wishes to consult with another lawyer should endeavor,
whenever possible, to consult with another lawyer who likely has no conflict and should carefully
disclose the information in generic or hypothetical terms.

Committee Opinion
May 19, 2003
Characteristics of a law firm include, for example, sharing of resources and personnel, mutual
access to confidential information, identification of themselves as a firm, and practitioners that
possess authority to provide counsel and share professional responsibility for each other. See
State Bar of Michigan Standing Committee on Professional and Judicial Ethics, Opinion No. RI249 (1996); California State Bar Standing Committee on Professional Responsibility and
Conduct, Formal Opinion No. 1986-90 (1986). For purposes of this question, the committee
opines that a Public Defender’s office is a firm based upon those listed shared characteristics and
the perception that the Public Defender office is an entity devoted to the practice of indigent
criminal defense.
The next question to be determined is whether each Public Defender office and Capital Defense
Unit may be considered as a separate law firm. Given the facts in your hypothetical, each Capital
Defense Unit will be separately housed from the Public Defender Offices and will maintain
separate phone, fax, and filing systems. The committee further believes that the Capital Defense
Units must be perceived as separate and distinct entities from the Public Defender offices and
have a secure computer system that prevents sharing of information, the establishment of a
conflicts checking policy and procedure, and the enforcement of said policy. Under those
circumstances, the committee believes that the Public Defender Offices and Capital Defense
Units will be considered as separate firms.
The committee believes that the structure of the Public Defender Office and a Capital Defense
Unit, over which the Commission has general oversight, can be distinguished from two
physically distinct offices of a private law firm. Perhaps the most fundamental difference is the
sharing of client information between different offices of a private law firm which is presumed
under the Rules of Professional Conduct and the common law relating to partnerships. In
contrast, the Public Defenders Offices and the Capital Defense Units do not share client
information and do not have access to each other’s files. Another distinguishing characteristic of
a law firm with multiple offices is that a managing committee, board, partner or group within the
firm may control what cases are accepted, how particular cases will be handled and which
lawyers in the law firm will be responsible for the engagement. No such control is exercised by
the Commission over the Public Defender Offices or the Capital Defense Units. Further, as a
profit-making entity, a private law firm will often have fee sharing and profit sharing
arrangements and use attorneys and staff from different offices to work on a particular
engagement. These attributes also make it logical to treat a private law firm with multiple offices
as a single entity because the employees or agents are united with a common goal or purpose to
enhance the law firm’s profits. These attributes are conspicuously absent from the structure
under which the Public Defender Offices and Capital Defense Units operate.
While the Commission has the authority to set the compensation for the Public Defenders and
personnel at each office, in actual practice, however, the Public Defender at each office
establishes the compensation for subordinate personnel, including pay raises for such personnel.
Also matters involving discipline and performance evaluation of subordinate personnel are
addressed by each Public Defender, not the Commission. The committee notes that conclusions
reached in this opinion are premised upon this practice. Should the Commission depart from this
practice, a new conflicts analysis would be necessary.

Committee Opinion
May 19, 2003

If the Capital Defense Units and Public Defender Offices are treated as separate autonomous
units, the third question is whether conflicts may be imputed, under Rule 1.10, to the entire the
entire Public Defender System when one Public Defender experiences a conflict. The Illinois
Supreme Court held that a public defender office is not disqualified simply because one attorney
experiences a conflict. See ISBA Advisory Opinion on Professional Conduct, Opinion 85-14
(1986); See People v. Robinson, 79 Ill. 2d 147 (1980)(Court rejecting argument that public
Defenders should disqualified themselves in three consolidated cases involving representing
former clients and clients with adverse interests.)
In the facts you present, the committee believes that the Capital Defense Units and the Public
Defender Offices may represent defendants without violating Rule 1.6(a), Rule 1.7(b)(1)and (2),
Rule 1.8 (b), or Rule 1.9(a), providing that the offices enact and enforce safeguards and review
each case carefully. Since the Public Defender Offices and the CDUs are separate and
autonomous “law firms,” a conflict of interest in one office under the two scenarios you have
described should not be imputed to another office under Rule 1.10. Client information known by
one office should not be presumed shared by other offices simply because they are subject to the
Commission’s oversight. The committee’s analysis of the ethical considerations in conflict cases
is limited, however, to the facts presented in your inquiry as there are additional procedural
determinations concerning constitutional issues that can not be answered by the committee and
would best be handled by the Attorney General’s office.
The committee cautions, however, that if a public defender or capital defense lawyer moves
from one office to another, there may be conflicts issues under Rule 1.7 or Rule 1.9 that must be
addressed. See Comments 3, 4 and 5 to Rule 1.9 concerning lawyers moving between firms.
This opinion is advisory only and not binding on any court or tribunal.
Committee Opinion
May 19, 2003