Case here. In this dependency appeal, the appellate court credited the trial court's concern that the IAC statement by the trial lawyer from the OPD might have been coercively procured by someone who supervised that lawyer. But the appellate court also emphasized that the resulting conflict of interest might not be imputed to the entire Office of Public Defender. Imputation could vary by division within the OPD. All in all, the case provides an interesting look at how conflicts law intersects with the bureaucratic realities within the OPD. Key paragraphs:
During a hearing to vacate Petitioner's earlier delinquency adjudication, the judge charged the Office of the Public Defender ("OPD") with "essentially post convicting [its] own lawyers" and ordered it to panel the case to an attorney wholly independent of that office. Petitioner was claiming ineffective assistance of counsel, and the judge was concerned that the self-damning affidavit submitted by Petitioner's previous OPD trial counsel was the product of coercion. While exercising her official duties in unrelated matters, the judge had learned of an internal OPD assessment program in which Baltimore County OPD juvenile lawyers were evaluated with the potential for adverse employment consequences. One of Petitioner's post-delinquency counsel was an investigator for the program and Petitioner's trial counsel may have been among those under evaluation. For these reasons, the judge struck the affidavit of trial counsel because there was an insufficient "Chinese Wall" separating Petitioner's trial counsel from his post-delinquency attorney. The issues in this appeal arise from that decision, as well as the judge's later refusal to recuse herself, and her denial of Petitioner's Motion to Vacate his delinquency adjudication. We shall affirm in part, and reverse in part.
[¶¶]
Four months after his delinquency hearing, Elrich filed a motion to vacate his delinquency finding on the grounds that his counsel was ineffective.At this juncture, Elrich was represented by the Chief Attorney (hereinafter referred to as "motions counsel" or "current counsel") of OPD's Juvenile Protection Division ("JPD"). Elrich alleged that previous counsel failed to adequately inform him of the nature of the charges, the consequences of a delinquency finding, the strength of the State's case, his right to a fair and impartial trial in which the State must prove the substance of its petition beyond a reasonable doubt, his ability to contest the Master's order, his right to suppress certain information, and his right not to testify at trial. Attached to the motion was a signed affidavit by Elrich's delinquency counsel ("the Affidavit"), who averred to, among other failures in her representation, "fail[ing] to zealously advise [Elrich] of the likelihood of success if the statement had been suppressed."
THE COURT: I, quite frankly, am troubled by the fact that someone who is in essence a supervisor has filed a — obtained an affidavit from somebody under their supervision of the nature of the affidavit that was filed in this case. I think that there is an ethical and conflict issue that I am raising because it is of concern to me.
* * *
[Motions Counsel]: I can clear up the Court's misinformation about the fact that I am not [delinquency counsel's] supervisor.
THE COURT: I'm aware of that but it was also my understanding from discussions within your office that there was a court watch of sorts where you and others came around and evaluated performance of lawyers in Baltimore County and that as a result of that, certain things happened within the Baltimore County office.
[Motions Counsel]: That your Honor has that knowledge means that someone from my office has had ex parte communications with the Court.
THE COURT: No. I have that knowledge actually by talking to the public defender on other issues unrelated to this case who talked about the supervision project that was done, so I didn't have ex parte communications about this case. I, quite frankly, am troubled that you would say that I did.
But I did have communication with your office where it was described to me that there was a supervision project, a court watch of sorts. As a result of that, various things happened. One of the things in that discussion were concerns about certain cases that people watched and evaluated. From the description that was provided to me in that context, this would appear to be one of those cases. So to then have an affidavit from the lawyer who was assigned done, presumably at the request of someone in your — in the office, and filed, is troublesome to me.
* * *
[Motions Counsel]: [W]e did not write that affidavit. We did not. In fact, I believe if the Court heard from [delinquency counsel], the Court would understand that we did write an affidavit. [Elrich's delinquency counsel] took exception with the affidavit that we wrote and she wrote her own. That is the affidavit that appears attached to the motion that was filed in this case.
THE COURT: It doesn't change the circumstances that you all are essentially post convicting your own lawyers.
* * *
[Motions Counsel]: I am not sure I understand what the problem is.
THE COURT: You don't see a conflict?
[Motions Counsel]: If your Honor is suggesting that [delinquency counsel] signed this affidavit because she was afraid she was going to lose her job or there was a threat of a removal from her job, there is absolutely no way that the Court can make that assumption.
* * *
But to speak to whether or not the juvenile protection division should be filing these things, collateral is a division — collateral review is a division of the same agency that we are with.[ 5 ] They also file post conviction. That is their sole job.
THE COURT: But this was carefully set up so that this was supervised differently, monitored differently. There is this whole Chinese wall theory that surrounds that unit for precisely this reason. As far as I can tell it does not exist within your juvenile unit. There are enough people that are troubled on the adult side that you have this specter of one unit, same office post convicting another lawyer in the same unit of that office. But, for a lot of reasons that happened and there was a Chinese wall built so that these ethical issues wouldn't be problematic.
One of the things that is of concern to me is it doesn't seem to have even been contemplated in this circumstance.
* * *
[T]o me, if you think there is a problem, refer it out, have someone independent of you all take a look at the file, whatever they think is appropriate. Then you don't have this specter of your office, which does have some oversight and review function, getting affidavits from a lawyer who stands to be impacted by how you perceive her performance, how you perceive her cooperation, how you perceive the whole matter.
[¶¶]
We hold that the juvenile court's order denying Elrich's Rule 11-116 motion to vacate is a final, appealable order. As to the merits, the court appropriately recognized that Elrich's ineffective assistance of counsel claims were a basis for relief under Rule 11-116. Furthermore, the juvenile judge's knowledge of the OPD's supervision program did not warrant her recusal from the case. The judge did err, however, in failing to consider whether Elrich had adequate representation or whether the evidence against him supported the finding that he engaged in a delinquent act. Finally, while the court had the discretion to appoint new counsel where a possible conflict of interest existed, the court erred when it required the OPD to panel the case to outside counsel. On remand, the juvenile court shall provide the OPD with the opportunity to avoid the potentially coercive situation by assigning an attorney to Elrich's case who could not conceivably exercise any influence or control over his delinquency counsel's employment. The court should then make findings as to Elrich's ineffective assistance of counsel and insufficiency of evidence claims.