Can a public defender office set up a separate conflicts unit so its lawyers can represent co-defendants whose interests conflict, the way a separate firm could?

Plain-English summary

Opinion E-90-6 considered a proposal by the State Public Defender Office (SPD) to establish a special-conflicts office in Milwaukee that would handle the representation of one co-defendant when another co-defendant or witness is represented by a trial-division SPD attorney. The conflicts office would be organizationally separate, with its own budget, separate attorneys, support staff, and supervisors, separately housed, and with conflict files kept separate and access limited to conflicts-office employees. The SPD also proposed to obtain statutory authority to delegate final case decisions to the head of the conflicts office. The question was whether assistant SPD attorneys could ethically represent co-defendants with conflicting interests under that arrangement.

The committee concluded that because the SPD is a "firm," the Rules of Professional Conduct prohibit the proposed representation unless the clients waive the disqualification in writing after consultation, citing SCR 20:1.10(a) and (d) and SCR 20:1.7(a)(2), and citing U.S. v. Tocco and Babb v. Edwards. The committee suggested the state public defender may wish to petition the Wisconsin Supreme Court to amend the Rules to clarify the SPD's status as a "firm" under the proposed arrangement. It also flagged a separate issue raised by the appellate division, noting authority that public defender staff may not allege that another staff member was ineffective (citing People v. Robinson), and asking whether two independent appellate divisions would be necessary and sufficient to eliminate the concern. The committee concluded that these issues should be addressed by the Wisconsin Supreme Court before any SPD conflicts office is implemented, adding that the concept generally appears workable if the appellate-representation issues are resolved satisfactorily.

Currency note

This opinion was issued in 1990, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 the State Public Defender Office treated as one firm for conflict purposes?

A: Yes. The committee concluded that the SPD is a "firm," so a conflict involving one SPD lawyer is imputed across the office under SCR 20:1.10.

Q: Could the separate conflicts office cure the conflict by itself?

A: Not without more. The committee concluded that the proposed representation is prohibited unless the clients waive the disqualification in writing after consultation, and that the Wisconsin Supreme Court should resolve the firm-status and appellate issues before the office is implemented.

Q: What did the committee say about appellate representation?

A: It raised a separate concern. The committee noted authority that public defender staff may not argue another staff member was ineffective, and questioned whether two independent appellate divisions would be needed to eliminate that conflict.

Background and rules framework

The opinion interpreted SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest) and SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts within a firm), applying them to a government public-defender office treated as a single firm. It read the rules against federal and state cases addressing public-defender conflicts.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.7 / Model Rule 1.7 (conflicts of interest)
• Wis. SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts)

Cases:

• U.S. v. Tocco, 575 F. Supp. 103 (N.D. Ill. 1983), public-defender conflict
• Babb v. Edwards, 412 So. 2d 859 (Fla. 1982), public-defender office conflict
• People v. Robinson, 410 N.E.2d 121 (Ill. App. 3d Dist. 1980), staff may not allege a colleague was ineffective

See also

• WI Ethics Op. E-90-5: City Attorney as Defense Counsel
• WI Ethics Op. E-91-3: Public Defender Caseloads
• WI Ethics Op. E-92-5: Corporation Counsel in Support Cases

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-90-6.pdf