Steve pointed me to the Illinois Supreme Court's opinion in People v. Cole, which holds that the Cook County Public Defender is not a "firm" within the meaning of Illinois Rule 1.10, which is substantively the same as the ABA model rule. As a practical matter, the holding means that different members of the PD's office may have to represent clients who are charged together but who have antagonistic interests.
The case came up from a friendly contempt citation issued to the Cook County PD, who had asked that the court not appoint the PD's office to represent one client (Cole) because the office already represented four other defendants. (The office eventually moved to withdraw from representing them.) The NACDL filed an amicus brief, as did the National Association for Public Defense, and three professors, including Steve.
This opinion makes sense to me but I respect the judgment of people on the other side of the issue, so I thought it might be interesting to discuss on the blog.
As a matter of positive law, the Illinois Court's reading of the text of the rule seems plausible. The Cook County PD's office is not analogous to a private firm or advocacy organization, it is the means by which the state discharges a constitutional governmental obligation. The NAPD amicus brief pointed to contrary decisions from New York, Florida, and Colorado, but these appear to be based on non-ABA language (in NY) or predate the Model Rule (in Florida or Colorado).
I would be happy to call the PD's office a "firm," however, if there were good practical reasons to do so. That is where I think opinions may vary. I view this as essentially an economic decision: Whether to make a service or to subsidize purchase of a service. In other words, PD's offices or some form of voucher (which a flat fee paid by the government essentially is, though controlled by someone other than the defendant).
I think it likely that there are economies of scale in representing large numbers of clients, which weighs in favor of coordination within an organization. 200 PDs in a government office can do more than 200 sole practitioners. Scale weighs in favor of an office rather than subsidized private-market purchases, and it avoids the question whether the defendant should control the voucher and pick the lawyer or whether a government official should do so.
On the lawyer side of the issue, I presume that individual public defenders are perfectly capable of zealously representing D1 in a case where other lawyers working for the office represent D2-D5. Their compensation is not going to be affected by anything they do, and maintaining confidentiality of files seems to me to pose a manageable administrative task. The individual lawyers can be trusted to do their job.
I think defense lawyers could coordinate to the extent desirable wither within the PD's office or outside it. Odds are pretty good that lawyers will at least consider entering into a JDA to see if a common defense is manageable, and thus avoid finger-pointing at trial. It is not as though limiting the PD's office to one client per defense group will stop coordination. One might argue that this fact cuts in favor of treating the PD's office as a firm, and thus in favor of disqualifying the PD's office or, as in Cole, respecting the PD's decision to decline an appointment or withdraw from a case. Call the coordination factor neutral.
On the client side, I take it that the argument is that client (D1) will be suspicious of a lawyer working for the PD if the client knows that Ds 2-5 are also represented by that office. I can see why that might not be the case--why wouldn't a client who favors a coordinated defense like the idea? But that defendant can be dealt with by waivers, so let's focus on the suspicious defendant who distrusts the assigned lawyer.
Why might distrust arise? I can think of three basic possibilities:
(1) The defendant is being charged by the government and it is contradictory to take a government lawyer; i.e., the system is rigged against me and this lawyer comes from (and by implication defends or represents) the system;
(2) The PD is paid by the government so he or she will ultimately toe the government line;
(3) The defendant didn't get to pick the lawyer.
I can see how a defendant might believe (1). But what follows from that premise? Some jurisdictions (such as San Diego) establish a separate government office to deal with conflicts. Doing so could satisfy the Rule 1.10 concern if the "firms" were distinct, but no amount of slicing government offices into different departments really deals with (1). I have a hard time believing that a defendant's trust of a PD turns on whether the PD works for the regular office or the affiliated conflicts office. That would argue in favor of retaining private counsel, and thus a form of voucher system, but doing so sacrifices some degree of scale economies.
I can see how a defendant might believe (2) as well. The premise that money talks It is one reason that some states are wary of counsel for an insured, who may be a one-off client, representing the insurer, which provides case flow. But reason (2) is too strong a premise to work with. A lawyer provided to an indigent defendant will either be paid by the government or work for free, which as a practical matter means that government pay is a constant. There is no way around it.
I can also see why a defendant might believe (3). But to give effect to that premise logically entails some sort of voucher system, which sacrifices scale economies and which would not deal with the worry in (2).
The substantive question presented by Cole is therefore how much incremental cost the system should absorb to (partially) allay client mistrust. If we presume that, as a practical matter, there are fairly tight limits to the amount society is willing to spend on criminal defense then there must be a limit if we to are avoid net losses in the quality of representation. (After all, incurably distrusting clients may forgo counsel.) What that tradeoff should look like strikes me as a serious question, with no obvious answer.
Thus a tepid conclusion: two cheers for People v. Cole. It strikes me as a reasonable though not necessary solution to a real problem in the criminal bureaucracy.