High court considers defender conflicts

By Bill Rankin

The Atlanta Journal-Constitution

The Georgia Supreme Court on Tuesday considered whether the state's public defender system can ethically provide and -- and also afford -- conflict-free representation for thousands of indigent clients.

At issue is a State Bar of Georgia proposal on how each of the state’s circuit public defender offices should handle cases with multiple defendants with competing interests -- such as when one co-defendant plans to testify against another. When a conflict exists, the State Bar opinion suggests, only one member of that circuit defender office can represent one defendant and outside counsel must be found to represent the other co-defendants.

The State Bar opinion, which has the attention of state budget writers, is years in the making and designed to address an issue that has plagued the relatively young defender system since it began operating in 2005. It has also divided the ranks of the public defenders who head the state's 43 circuit offices; some offices already adhere to the State Bar opinion, while others do not.

There were about 9,400 “conflict” cases throughout the state defender system last year that cost more than $4.5 million to defend. If more attorneys are needed to represent clients in multi-defendant cases, the financially strapped defender system may have to seek millions of dollars in additional funding from the Legislature.

“This is a practical question of how we provide representation to the individuals under our charge,” Michael Edwards, the public defender in Savannah, told the justices Tuesday. “We are the experts in representing poor people.”

If the court upholds the State Bar proposal, Edwards said, “there will be a vast increase in the number of cases not receiving the expertise of public defenders.” If only one defender in his office can represent a single co-defendant, many defendants will languish in jail waiting to get another lawyer assigned to represent them, he predicted.

Defender offices can guard against conflicts by erecting “ethical screens” within their offices in which a defender representing one co-defendant does not talk about the case with a defender representing another person charged in the same case, Edwards said.

But Justice David Nahmias noted private law firms and legal aid and district attorney’s offices have guidelines that prohibit lawyers in the same office from representing more than one person in the same case. “Why are you asking us to treat public defender offices differently?” he asked.

Justice Robert Benham asked if the State Bar opinion is out of the mainstream of practices used by defender agencies in other states and whether it ensures equal justice for all.

Paula Frederick, the State Bar’s general counsel, replied that Georgia’s proposal follows rules used in most other states. It will also guarantee that indigent defendants “have conflict-free, independent and loyal representation they way the Constitution guarantees.”

Frederick said it is possible for the defender system to install local conflict defender offices or allow defenders in one circuit office take conflict cases in a neighboring circuit offices. “We need to figure out a way to do this that is both economic and ethical,” she said.