Can a public defender office contract to appoint and pay outside conflict counsel from its own budget?

Plain-English summary

A lawyer asked about the potential for conflict of interest in a contract under which a public defender office would administer a list of conflict attorneys designated by the office and paid out of the office's budget. The committee noted that public defenders and public defender agencies are held to the same ethical criteria as private lawyers and private law offices.

The committee was of the opinion that the proposed contract language raises conflict-of-interest issues under RPC 1.7 and 1.9 in requiring the defender office to recognize a conflict and hire outside counsel out of its budget to provide representation; it thought the situation analogous to that discussed in Tank v. State Farm Insurance, 105 Wn.2d 381 (1986). The committee was also of the opinion that the plan would raise issues under RPC 1.8(f): the public defender could not require the outside attorney to supply confidential information from the client to the defender office, nor, even for purposes of reviewing billing, provide information revealing trial strategy, work product, or confidences or secrets where the public defender is representing a potential adverse co-defendant. The committee thought there might be other ethical issues raised by the agreement and wished to review the entire contract.

Currency note

This opinion was issued in 1995, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.7, 1.8, and 1.9 correspond to ABA Model Rules 1.7 (conflict of interest: current clients), 1.8 (specific conflict rules, including (f) on compensation from a third party), and 1.9 (duties to former clients).

Common questions

Q: Are public defenders held to the same conflict rules as private lawyers?

A: Yes. The committee noted that public defenders and public defender agencies are held to the same ethical criteria as private lawyers and private law offices.

Q: What conflict issues does paying outside counsel from the office budget raise?

A: The committee was of the opinion that requiring the defender office to recognize a conflict and hire outside counsel out of its budget raises conflict-of-interest issues under RPC 1.7 and 1.9, analogous to Tank v. State Farm.

Q: Can the office require billing or case information from the outside conflict counsel?

A: The committee said RPC 1.8(f) means the office could not require outside counsel to supply client confidences, or, even to review billing, information revealing trial strategy, work product, or confidences or secrets where the office represents a potential adverse co-defendant.

Background and rules framework

The opinion applied RPC 1.7 and 1.9 (conflicts involving current and former clients, corresponding to ABA Model Rules 1.7 and 1.9) and RPC 1.8(f) (compensation from one other than the client, corresponding to ABA Model Rule 1.8(f)). The committee treated the structural conflict as analogous to Tank v. State Farm and identified the flow of confidential information between the defender office and outside counsel as the RPC 1.8(f) problem, especially where the office represents a potential adverse co-defendant.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9
• ABA Model Rule 1.8(f) (compensation from one other than the client); Washington RPC 1.8(f)

Cases:

• Tank v. State Farm Fire & Casualty Co., 105 Wn.2d 381 (1986), cited as analogous on the conflict issue

See also

• WA Ethics Op. 1626: Firm Member on a City Council, Firm Adverse to the City

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=729

Original opinion text

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

Advisory Opinion: 1647
Year Issued: 1995
RPC(s): RPC 1.7; 1.8(f); 1.9
Subject: Conflict of interest; public defender agency appointing and paying outside lawyers when conflict arises

The Committee reviewed your inquiry regarding the potential for conflict of interest in entering into a contract in which the public defender office would administer a list of conflict attorneys to be designated by the defender office and paid out of the defender office budget. The Committee noted that public defenders and public defender agencies are held to the same ethical criteria as private lawyers and/or private law offices. The Committee was of the opinion that the proposed contract language raises conflict of interest issues under RPC 1.7 and 1.9 in requiring the defenders office to recognize a conflict and hire outside counsel out of their budget to provide representation. The Committee thought the situation was analogous to that discussed in Tank v. State Farm Insurance 105 Wn. 2nd 381 (1986).

The Committee was also of the opinion that such a plan would raise issues under RPC 1.8(f) in that the public defender could not require that outside attorney to supply confidential information from the client to the public defenders office nor, even for the purposes of reviewing billing, provide information that would reveal trial strategy, work product, or confidences or secrets where the public defender is representing a potential adverse co-defendant.

The Committee thought there might be other ethical issues raised by such an agreement as well, and wishes to review the entire contract.