State Bar of Arizona Ethics Opinions

96-03: Conflict of Interest; Public Defenders; Imputed Disqualification; Criminal Representation; Ineffective Assistance
2/1996

A public defender must withdraw from representation of a criminal defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the public defender's office.  The timing of the withdrawal will depend upon the facts of each individual case.  [ERs 1.7, 1.10. 1.16]

The Committee has received a request from a public defender office concerning the ethical propriety of representing defendants in post-conviction relief (PCR) actions who seek to raise claims of ineffective assistance against other lawyers in the same office.  While the Committee has concluded that it would be unethical for the public defender's office to pursue claims of ineffective assistance against members of the same office, disqualification may not be required simply because a defendant wishes to present such a claim.

 

FACTS[1]

 

The public defender's office is appointed to represent defendants challenging their sentences through Petitions for Post-Conviction Relief under Rule 32, Arizona Rules of Criminal Procedure.  Presumably, the PCR remedy has become more prevalent recently since the Arizona Supreme Court abolished the right of a criminal defendant to file an appeal from a plea of guilty or no contest.  See Rule 17.1(e), Arizona Rules of Criminal Procedure.  The only vehicle for challenging a conviction after a guilty plea is the filling of a PCR petition.

 

Apparently, an initial contact letter is sent to the PCR client containing a list of the grounds for relief.  One of the grounds is, of course, the denial of the defendant's Sixth Amendment right to effective assistance of counsel.  A claim of ineffective assistance may not be asserted for the first time on appeal, but must be presented to the trial court in a Petition for Post-Conviction Relief.  See State v. Allgood, 171 Ariz. 522, 8 P.2d 1290 (Ariz. App. 1992).

 

According to the inquiring attorneys, in about 20% of the PCR cases the defendant wishes to assert a claim of ineffective assistance against trial counsel who also is a member of the public defender's office.  Many of these complaints are unspecific and simply allege that the deputy public defender was ineffective.

 

After appointment, the public defender reviews these cases to determine whether the defendant has presented a "colorable" claim of ineffective assistance of counsel.  To establish a "colorable" claim the petitioner must prove that counsel's performance was deficient and that it prejudiced the outcome of the proceeding.  State v. Fulminante, 161 Ariz. 237, 260, 778 P.2d 602, 625 (1989).  If a "colorable" claim of ineffective assistance is deemed present, the public defender's office moves to withdraw from the case.

 

QUESTION PRESENTED

 

1.  Does the PCR lawyer have an ethical responsibility to withdraw when the defendant makes the initial claim of ineffective assistance of counsel by another member of the public defender's office?

 

2.  Does the responsibility to withdraw from representation arise merely from the fact that a specific allegation of ineffectiveness of the public defender has been made, or must the PCR lawyer be convinced that the client has a "colorable" claim of ineffective assistance of counsel before withdrawing?

 

RELEVANT ETHICAL RULES

 

ER 1.7  Conflict of Interest:  General Rule

 

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            (b)  A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

 

            (1) the lawyer reasonably believes the representation will not be adversely affected; and

 

            (2) the client consents after consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

 

* * * * *

 

ER 1.10   Imputed Disqualification:  General Rule

 

            (a)  While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

 

* * * * *

 

ER 1.16   Declining or Terminating Representation

 

            (a)  Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

 

            (1) the representation will result in violation of the Rules of Professional Conduct or other law;

 

* * * * *

 

OPINION

 

This inquiry presents the question of when, not if, a public defender should withdraw from representation of a defendant who seeks to assert an ineffective assistance of counsel claim against another member of the public defender's office.  Numerous authorities have concluded that such representation would present a disqualifying conflict for the public defender.  As the American Bar Association has noted in its Standards for Criminal Justice:

 

          If the defender attorney on appeal believes that an issue of ineffective assistance of counsel should be presented, the defender program should be excused and private counsel appointed to the case.  Unless this is done, the appellate lawyer from the defender office will be faced with a conflict of interest in complaining about the conduct of a colleague who represented the client in the trial court.

 

ABA Standards for Criminal Justice, Providing Defense Services, (3rd ed. 1992).  Standard 5-6.2, Commentary at page 84.  See also, Nebraska State Bar Ethical Opinion, 88-1 (a county public defender may not challenge the competence of another county public defender in the same office in order to establish a theory of ineffective assistance of counsel in an appeal of a conviction); Nebraska State Bar Ethical Opinion, 90-01 (a lawyer who is a public defender may not represent a defendant in a federal habeas corpus action to overturn his conviction and sentence where the grounds for relief involve alleged ineffective assistance of another lawyer in the public defender's office).

 

Thus, there is no question that if an ineffective assistance of counsel claim is to be made in the PCR, the public defender's office must withdraw.  The question of when that withdrawal should be accomplished must be determined by the facts of each individual case.  It could be argued that the client's mere assertion of ineffective assistance should cause the public defender to withdraw.  On the other hand, patently frivolous claims of ineffective assistance which the PCR public defender does not believe represent a "colorable" claim should not result in wholesale disqualification of the public defender's office.

 

The Committee believes that the decision of when to seek withdrawal can best be made through the guidance of ER 1.7(b).  That section provides that a lawyer "shall not represent a client if the representation of that client may be materially limited . . . by the lawyer's own interests."  Of course, through the imputed disqualification provision of ER 1.10, id., if trial counsel in the public defender's office would have a conflict, then the PCR lawyer would also have a conflict.  See Opinion 89-08 (public defender offices a firm within meaning of ER 1.10(b)).  The commentary to ER 1.7 clearly notes that lawyers will rarely be able to give appropriate advice and representation when their own conduct is being questioned.  "If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give the client detached advice."  ER 1.7 Comment.

 

In many circumstances, the PCR lawyer's representation may not be "materially" limited by a conclusory claim of ineffective assistance of counsel.  Applying ER 1.7(b) requires a case-specific inquiry into the impact of conflicting responsibilities.  See G. Hazard, Jr. and W. Hodes, The Law of Lawyering, § 1.7:301 at pp. 247-48 (1996 Supp.)  Mere "marginal limitations" on representation may not require withdrawal.  Id.

 

It can be assumed that some of the claims of ineffective assistance, even if proved, would not merit relief under prevailing legal standards.  Although the decision of whether the PCR lawyer feels there is any limitation on the representation would be up to him or her, it is unlikely that such frivolous claims would engender such a conflict.

 

On the other hand, if the claim of ineffective assistance has facial merit and requires further investigation, ER 1.7(b) also provides appropriate guidance.  Under that section the lawyer can continue representation if:

 

            (1)        The lawyer reasonably believes the representation will not be adversely affected; and

 

            (2)        The client consents after consultation.

 

Thus, if the PCR public defender reasonably believes that his or her representation will not be adversely affected by the fact that a conclusory claim of ineffective assistance has been made against another member of his office, and the client consents after consultation on this issue, then representation can continue.  "Consultation" is defined as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question."  Consent would allow the PCR public defender to properly investigate the claim of ineffective assistance of counsel and determine whether there is a "colorable" claim of ineffective assistance, then it should not be included in the PCR petition, despite the client's wishes.  See ABA Standards for Criminal Justice, the Defense Function Standard 4-8.6.

 

After consultation and explanation of the conflict, if the client refuses to consent then it would be the Committee's view that the PCR public defender should seek to withdraw.  Indeed, even if ethical rules did not require it, it would probably be in the best interest of the PCR public defender to obtain consent from the client to continue representation lest his or her conduct be subject to claims that the investigation was inadequate as a result of the conflict of interest.[2]

 

CONCLUSION

 

A public defender must withdraw from representation of a defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the public defender's office.  The timing of that withdrawal will depend upon the facts of each individual case.  If the claim is frivolous for example, no further inquiry is probably necessary.  If the claim has facial merit, the PCR public defender may investigate that claim as long as he or she reasonably believes that the presentation will not be adversely affected and the client consents after consultation.



[1]Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  ã State Bar of Arizona 1996

[2]Consent, of course, would not be sufficient to allow representation after a "colorable" claim has been asserted.  In this situation the conflict is so acute that no reasonable lawyer would be able to say that his or her representation was not adversely affected.  As the commentary to ER 1.7 makes clear, "... when a disinterested lawyer would conclude that the client should not agree to representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent."