State of Iowa v. Lavelle Lonelle McKinley , 2015 Iowa Sup. LEXIS 28 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–1226
Filed March 13, 2015
STATE OF IOWA,
Appellee,
vs.
LAVELLE LONELLE McKINLEY,
Appellant.
Appeal from the Iowa District Court for Polk County, Arthur E.
Gamble, Judge.
A criminal defendant appeals the district court’s order
disqualifying the entire Des Moines adult public defender’s office from
representing him. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, John P. Sarcone, County Attorney, and Nan M. Horvat,
Assistant County Attorney, for appellee.
Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for amicus
curiae Heather Hickman.
2
HECHT, Justice.
The district court appointed two attorneys from the Des Moines
adult public defender’s office to represent the defendant on a murder
charge. After reviewing the State’s list of expected witnesses, the two
defense attorneys realized other attorney colleagues in their office had
previously represented three of the State’s witnesses on unrelated
matters. The attorneys brought this potential conflict of interest to the
district court’s attention and requested a ruling whether a conflict of
interest precludes them from representing the defendant. After the
hearing, the district court concluded a conflict existed and disqualified
all attorneys employed at the Des Moines adult public defender’s office.
Upon review, we conclude the potential conflict of interest shown under
the circumstances presented in this record did not justify disqualification
of the attorneys. Accordingly, we reverse and remand for further
proceedings.
I. Background Facts and Proceedings.
The State of Iowa charged Lavelle McKinley with first-degree
murder following the death of Cynthia Rouse. The district court
appointed two attorneys from the Des Moines adult public defender’s
office, Jennifer Larson and Heather Lauber, to represent McKinley. Long
before trial was to begin, Larson and Lauber discovered other attorneys
in their office had previously represented three potential witnesses for
the State: Cheyenne Rouse, the decedent’s husband who discovered the
body; Heather Hickman, the decedent’s neighbor whom the State expects
to testify she heard footsteps near the decedent’s apartment shortly
before the alleged homicide; and Wayne Manuel, the decedent’s brother-
in-law. Neither Larson nor Lauber had ever personally represented these
witnesses, but other public defenders from the same office (Jill
3
Eimermann and Jennifer Russell) had done so. The prior
representations were all unrelated to the murder charge against
McKinley and had all concluded months or years before McKinley was
arrested for the crime charged in this case.
Larson and Lauber requested a hearing and a determination
whether a conflict of interest existed requiring their disqualification. The
court scheduled a hearing and appointed independent counsel to
represent each of the three potential witnesses. At the hearing, Larson
and Lauber asserted their public defender colleagues’ past
representations of Rouse, Hickman, and Manuel on unrelated matters
presents no conflict because those matters concluded well before
McKinley was charged and therefore are not concurrent with the
representation of McKinley. They contended the temporal separation
between the current representation of McKinley and the previous
concluded representations of the witnesses provides assurance against
the risk of divided loyalties in continuing to represent McKinley.
Larson and Lauber assured the court they had no information
about the matters for which their colleagues had previously represented
Rouse, Hickman, and Manuel; they had not reviewed the existing files
kept in the public defender’s office pertaining to those matters; and they
had already instituted measures preventing them from accessing such
information and files during the pendency of this case. Therefore, they
contended any potential conflict of interest arising from the prior
representations of the three witnesses by other attorneys in the
Des Moines office should not be imputed to them. Additionally, the
hearing record included a colloquy with the court in which McKinley
expressly acquiesced in any potential conflict of interest and indicated
his desire to have Larson and Lauber continue representing him. After
4
the hearing, McKinley filed a document confirming his acquiescence in
any potential conflict and reaffirming his wish for continued
representation by Larson and Lauber. 1
Rouse and Hickman informed the court through their counsel who
were present at the hearing that they would neither waive any attorney–
client privilege with the public defender’s office nor consent to Larson
and Lauber representing McKinley. Manuel’s appointed attorney also
attended the hearing and disclosed he had been unable to contact or
consult with Manuel. 2 The State urged the court to disqualify the entire
Des Moines adult public defender’s office. The State based its position in
part on the concern that any conviction resulting from a trial in which
McKinley is represented by Larson and Lauber might be subject to
reversal if an appellate court concludes on appeal that a conflict of
interest adversely affected their representation of McKinley.
After the hearing, the court issued a ruling concluding a conflict of
interest disqualifies all attorneys employed at the Des Moines adult
public defender’s office from serving as McKinley’s counsel in this case.
The court’s ruling was based on the proposition that Larson and
Lauber’s continuing representation of McKinley would breach duties
owed to the public defenders’ former clients while infringing upon
McKinley’s Sixth Amendment right to conflict-free counsel. The court
reasoned that disqualification of all attorneys from the same public
defender’s office is required because an actual, nonspeculative conflict
1Because we conclude in this case that no actual conflict or serious potential
conflict justified disqualification of Larson and Lauber, we do not decide whether the in-
court colloquy and the written document McKinley filed after the hearing effected a valid
waiver of the right to conflict-free counsel. See State v. Smitherman, 733 N.W.2d 341,
348 n.7 (Iowa 2007).
2There was an outstanding warrant for Manuel’s arrest on an unrelated matter.
5
existed between the interests of McKinley and those of the three
witnesses.
The conflict, the court explained, was based on the perception that
Larson and Lauber’s representation of McKinley was directly and
materially adverse to Rouse, who had been represented in the past by
other public defenders from the same office in connection with felony
drug offenses. 3 The court designated the juvenile public defender as
McKinley’s new counsel.
McKinley applied for discretionary interlocutory review, and the
State indicated it did not resist. We granted discretionary review and
retained the appeal.
II. Scope of Review.
The question of whether a conflict exists is a mixed question of fact
and law. Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003). When a
defendant claims a violation of the constitutional right to counsel, our
review is generally de novo. State v. Smith, 761 N.W.2d 63, 68 (Iowa
2009); State v. Smitherman, 733 N.W.2d 341, 345 (Iowa 2007).
“Whether the facts show an actual conflict of interest or a serious
potential for conflict is a matter for trial court discretion . . . .” Pippins,
661 N.W.2d at 548. We review these conflict-of-interest determinations
for an abuse of discretion. Smith, 761 N.W.2d at 68. “We find an abuse
of discretion only when the . . . discretion was exercised on grounds or
for reasons clearly untenable or to an extent clearly unreasonable.” State
3Although the district court focused primarily on the conflict between the
interests of McKinley and Rouse, the court concluded Hickman and Manuel’s interests
were similarly adverse to McKinley’s and further justified the disqualification remedy it
chose.
6
v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997); accord Smith, 761 N.W.2d
at 68–69; Pippins, 661 N.W.2d at 548.
III. The Parties’ Positions.
The parties are not directly adverse on the disqualification issue.
McKinley urges reversal of the disqualification order, reinstatement of
Larson and Lauber as defense counsel, and remand for trial. The State,
couching its position in furtherance of promoting error-free trials and
protecting the finality of convictions, agrees the district court may have
erred—but not because the district court found Larson and Lauber were
burdened by a conflict of interest. Rather, the State expresses concern
that if McKinley is convicted, the verdict might be overturned on appeal
because the district court accepted the county attorney’s suggestion to
override McKinley’s choice of counsel. See Gary T. Lowenthal, Successive
Representation by Criminal Lawyers, 93 Yale L.J. 1, 52 (1983)
[hereinafter Lowenthal] (“Even when the court appoints counsel for an
indigent defendant, it cannot discharge the lawyer over the defendant’s
objection absent compelling justification.”). Thus, the State asks for
guidance about the balance between conflict-of-interest rules and a
defendant’s Sixth Amendment rights and requests a remand for a new
hearing on the conflicts issue. 4
IV. Analysis.
We conclude the circumstances of this case do not rise to the level
of an actual conflict. We further conclude the present record evidences
no serious potential conflict likely to divide Larson and Lauber’s loyalties
or otherwise compromise their duty to provide zealous representation for
4Hickman, as amicus curiae, contends disqualification of Larson and Lauber
was appropriate under the circumstances presented here and asserts her refusal to
consent to the conflict makes the attorneys’ representation of McKinley impermissible.
7
McKinley. Thus, the potential conflict presented in this factual scenario
does not override McKinley’s interest in continuing his attorney–client
relationship with Larson and Lauber.
A. McKinley’s Interest in Continuity of Appointed Counsel.
“In all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel also includes a right to choose that counsel. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557,
2561, 165 L. Ed. 2d 409, 416–17 (2006). However, McKinley did not hire
Larson and Lauber; the district court appointed them to represent him.
The Supreme Court has observed that “the right to counsel of choice
does not extend to defendants who require counsel to be appointed for
them.” Id. at 151, 126 S. Ct. at 2565, 165 L. Ed. 2d at 421; see also
United States v. Espino, 317 F.3d 788, 798–99 (8th Cir. 2003) (“[A]n
indigent defendant has no right to demand of a court that a particular
attorney, or particular attorneys, be appointed to represent him.”).
Yet, a right to choose one’s appointed counsel is different from “a
right to choose to continue an ongoing attorney-client relationship.”
Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44
San Diego L. Rev. 525, 549 (2007) (emphasis added). Several
commentators have suggested that although indigent defendants cannot
choose their initial appointed attorney, they should at least have the
right to continuity of representation after an attorney has been
appointed. See, e.g., id.; Lowenthal, 93 Yale L.J. at 52; Anne Bowen
Poulin, Strengthening the Criminal Defendant’s Right to Counsel, 28
Cardozo L. Rev. 1213, 1249 (2006) [hereinafter Poulin] (“[C]ourts should
recognize that indigent defendants have a constitutionally protected right
to have the initially appointed attorney continue to represent them and
8
that this right can be overcome only under limited circumstances.”). One
scholar has observed that “[a] defendant’s relationship with counsel may
be critical to the quality and effectiveness of the representation the
defendant receives.” Poulin, 28 Cardozo L. Rev. at 1258.
Courts are split on the importance of continuity of the relationship
between indigent defendants and their appointed attorneys. Some have
concluded there is no right to continuity of appointed counsel. See
United States v. Basham, 561 F.3d 302, 324–25 (4th Cir. 2009); Daniels
v. Lafler, 501 F.3d 735, 738–39 (6th Cir. 2007); United States v. Parker,
469 F.3d 57, 61 (2d Cir. 2006); State v. Reeves, 11 So. 3d 1031, 1065–66
(La. 2009). On the other hand, several courts have concluded once an
attorney is appointed, the court should be just as hesitant to remove
them as it would be to remove a privately-retained attorney. See, e.g.,
United States v. Myers, 294 F.3d 203, 206 (1st Cir. 2002) (“Once a court
appoints an attorney to represent an accused . . . there must be good
cause for rescinding the original appointment and interposing a new
one.”); Lane v. State, 80 So. 3d 280, 295 (Ala. Crim. App. 2010) (“With
respect to continued representation, . . . there is no distinction between
indigent defendants and nonindigent defendants.”); People v. Harlan, 54
P.3d 871, 878 (Colo. 2002) (“A defendant’s desire for continued
representation by a court-appointed public defender is ‘entitled to great
weight.’ . . . [A]n indigent defendant has a presumptive right to
continued representation by court-appointed counsel absent a factual
and legal basis to terminate that appointment.” (quoting Rodriguez v.
Dist. Ct., 719 P.2d 699, 707 (Colo. 1986))); People v. Burton, 811 N.Y.S.2d
663, 664 (App. Div. 2006) (reversing a conviction and granting a new trial
because the trial court “deprived [the] defendant of the right to continued
9
representation by assigned counsel with whom he had formed an
attorney-client relationship”).
We adopt the latter view and hold that once an attorney is
appointed, they should not be removed “absent a factual and legal basis
to terminate that appointment.” Harlan, 54 P.3d at 878. Trust and good
communication are crucial features of an attorney–client relationship.
This is true when a client has resources and privately retains a lawyer;
and it is no less true when a client is indigent and obtains counsel
appointed by the court. In both instances, opportunities for establishing
trust and effective communication are generally enhanced over time
through interpersonal contact. Once established, the interest in
maintaining a relationship of trust with counsel is of no less importance
to an indigent client than to one with ample resources to hire counsel.
Yet, solicitude for a client’s preference for retaining their court-
appointed attorney does not preclude disqualification when
circumstances require it. “The right to counsel of choice—either initially
or continued representation—is not absolute . . . either for indigent or
nonindigent defendants.” Lane, 80 So. 3d at 295; see also Vanover, 559
N.W.2d at 626–27 (noting “a presumption in favor of the accused’s
counsel of choice” can be rebutted (internal quotation marks omitted));
State v. Williams, 285 N.W.2d 248, 255 (Iowa 1979) (“[T]he right to choice
of counsel by both indigent and non-indigent defendants is limited
. . . .”). The court can still disqualify the defendant’s preferred attorney if
the circumstances present an actual conflict or a serious potential for
conflict. Wheat v. United States, 486 U.S. 153, 162–63, 108 S. Ct. 1692,
1699, 100 L. Ed. 2d 140, 150–51 (1988) (giving courts this power when
one attorney represents codefendants); accord Smith, 761 N.W.2d at 73;
Vanover, 559 N.W.2d at 626–27.
10
B. Defining “Actual Conflict” and “Serious Potential for
Conflict.” A conflict does not exist just because one party asserts it
does. Pippins, 661 N.W.2d at 547 (concluding a defense attorney’s
characterization of his previous representation of a prosecution witness
as a conflict “does not necessarily make it so”); cf. Bottoms v. Stapleton,
706 N.W.2d 411, 419 (Iowa 2005) (refusing, in a civil case, to disqualify
an attorney “simply because the opposing party alleges the possibility of
differing interests”). Instead, we must independently evaluate whether
the circumstances show an actual conflict or serious potential for
conflict.
The definition of “actual conflict” has been expressed in various
ways. In State v. Watson, we stated an actual conflict occurs when “ ‘an
attorney is placed in a situation conducive to divided loyalties.’ ” 620
N.W.2d 233, 239 (Iowa 2000) (quoting Smith v. Lockhart, 923 F.2d 1314,
1320 (8th Cir. 1991)); see also Pippins, 661 N.W.2d at 548 (repeating the
“divided loyalties” standard). We concluded concurrent representation of
a defendant and a witness against him in a criminal case created divided
loyalties and burdened the defense’s pretrial investigation and trial
strategy. Watson, 620 N.W.2d at 240–41; see also United States v. Lech,
895 F. Supp. 586, 590 (S.D.N.Y. 1995) (defining actual conflict as
something that “impedes the attorney’s ability to present a vigorous
defense”).
Later, the Supreme Court defined actual conflict under the Sixth
Amendment as “a conflict of interest that adversely affects counsel’s
performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct.
1237, 1244 n.5, 152 L. Ed. 2d 291, 305 n.5 (2002); see Smitherman, 733
N.W.2d at 347 (adopting the Mickens definition in Iowa). We applied the
“adverse effect” formulation in Smitherman where the trial court had
11
conducted an inquiry into the conflict in advance of trial. Smitherman,
733 N.W.2d at 347 (concluding the claimed conflict did not require
reversal of Smitherman’s conviction because he failed to establish the
conflict had an adverse effect on trial counsel’s representation). 5
In this case, the district court properly held a hearing on the
conflict issue early in the pretrial stage of the proceedings. The court’s
analysis of the nature and gravity of the alleged conflict was therefore
primarily forward-looking rather than a retrospective assessment of
whether the public defenders’ prior representation of the witnesses had
any adverse effect on Larson and Lauber’s representation of McKinley.
The forward-looking assessment at the pretrial stage of this case required
an assessment of the likelihood that a potential conflict might blossom
into an actual conflict during either the pretrial stage or the trial stages
of McKinley’s case. See Smith, 761 N.W.2d at 72; see also Lowenthal, 93
Yale L.J. at 58 (“In most cases the court can only assess the risk that a
conflict will occur . . . .”).
This type of prospective analysis applies the “serious potential for
conflict” standard. A serious potential for conflict occurs when the
record indicates an actual conflict is likely to arise. See United States v.
Johnson, 131 F. Supp. 2d 1088, 1099 (N.D. Iowa 2001). We turn to a
discussion of the nature of the potential conflict at issue in this case and
our reasons for concluding that the risk it will adversely affect Larson
and Lauber’s representation of McKinley is insufficient to countermand
McKinley’s interest in maintaining his attorney–client relationship.
5We left open in Smitherman the question whether prejudice might still be
presumed under article I, section 10 of the Iowa Constitution—even without a showing
of adverse effect arising from a conflict—if a trial court fails to conduct any inquiry
whatsoever. Smitherman, 733 N.W.2d at 347.
12
C. Ethical Rules and Standards. The district court relied
primarily on Iowa Rules of Professional Conduct 32:1.7 and 32:1.9 in
concluding an actual conflict exists between the interests of McKinley
and those of the three witnesses the State intends to call. These rules of
professional conduct provide guidelines aiding us in determining whether
an actual conflict is likely to arise if Larson and Lauber continue
representing McKinley. The guidelines supplied by the rules are
relevant, but are not alone dispositive. Smith, 761 N.W.2d at 75; see
Smitherman, 733 N.W.2d at 348–49 (discussing ethical rules mostly in
dicta).
1. Rule 32:1.7. Rule 32:1.7 prohibits an attorney from
representing two clients when a concurrent conflict of interest exists.
Iowa R. Prof’l Conduct 32:1.7(a). A concurrent conflict of interest arises
in one of two ways: either one representation is “directly adverse to
another client,” or “there is a significant risk that the representation . . .
will be materially limited by the lawyer’s responsibilities to another client,
a former client, or a third person.” Id. r. 32:1.7(a)(1)–(2).
Because the terms are listed separately, “another client” and
“former client” cannot mean the same thing. We presume statutes or
rules do not contain superfluous words. See Sallee v. Stewart, 827
N.W.2d 128, 153 (Iowa 2013); State v. Soboroff, 798 N.W.2d 1, 7 (Iowa
2011). Thus, “another client” means another current client. Rouse,
Hickman, and Manuel were no longer current clients of the public
defender’s office when Larson and Lauber began defending McKinley.
Accordingly, no concurrent conflict of interest exists under rule
32:1.7(a)(1).
Thus, if there is any concurrent conflict of interest here, it occurs
because Larson and Lauber “will be materially limited” by their
13
responsibilities to the public defender’s former clients Rouse, Hickman,
and Manuel. See Iowa R. Prof’l Conduct 32:1.7(a)(2). The comments to
the rules suggest a material limitation occurs when a “lawyer’s ability to
consider, recommend, or carry out an appropriate course of action” is
hampered. Id. r. 32:1.7 cmt. [8]. Put another way, the conflict
formulation under rule 32:1.7(a)(2) is consistent with the definition we
applied in Watson: a conflict arises when a danger of divided loyalties
burdens or impedes the attorneys’ defense strategy. Watson, 620 N.W.2d
at 240–41; see also Lech, 895 F. Supp. at 590.
In Smith, we stated concurrent representation of a defendant and a
witness on unrelated matters by separate attorneys from the same
private law firm did not meet the material limitation standard when
counsel for the defendant did not personally represent the witness, had
no knowledge of the witness’s confidential information, and had taken
measures to screen himself from the law firm’s personnel and files with
such information. Smith, 761 N.W.2d at 75. In this case, we conclude
other public defenders’ past representation of the witnesses on matters
unrelated to the crime charged against McKinley also presents no risk of
materially limiting Larson and Lauber’s representation of McKinley.
Indeed, on this record we find no significant likelihood that Larson and
Lauber will be foreclosed from formulating or implementing any
particular defense strategy as a consequence of their colleagues’ former
representation of the witnesses. Accordingly, we conclude on this record
Larson and Lauber are not materially limited by a concurrent conflict
prohibiting their representation of McKinley under rule 32:1.7.
2. Rule 32:1.9. Rule 32:1.9 addresses duties owed by attorneys to
former clients. The rule states that a lawyer cannot represent a
subsequent client “in the same or a substantially related matter in which
14
that person’s interests are materially adverse to the interests of the
former client.” Iowa R. Prof’l Conduct 32:1.9(a). The district court
concluded Larson and Lauber’s colleagues’ former representation of the
three witnesses is substantially related to the defense of McKinley
because Larson and Lauber will likely use the witnesses’ prior
convictions for impeachment purposes. Accordingly, it ruled Larson and
Lauber could not continue representing McKinley without informed
consent from the witnesses. On review, we conclude the district court’s
interpretation of the phrase “substantially related” was clearly untenable.
The murder charge against McKinley is unquestionably not the
same matter in which the public defender’s office previously represented
Rouse, Hickman, and Manuel. Therefore, a conflict exists under rule
32:1.9 only if the previously-concluded matters in which the public
defenders represented the witnesses are substantially related to the
pending case against McKinley. The comments to rule 32:1.9 reveal
matters are substantially related if “confidential factual information . . .
obtained in the prior representation would materially advance the client’s
position in the subsequent matter.” Iowa R. Prof’l Conduct 32:1.9 cmt.
[3]. There is no evidence in this record tending to establish any
confidence or secret learned during the public defenders’ prior
representations of the witnesses on unrelated matters would be used
against Rouse, Hickman, or Manuel, or that any confidence or secret
would materially benefit McKinley’s defense. See Johnson, 131 F. Supp.
2d at 1088 (“[T]here is simply no conflict of interest that must be
remedied in [the attorney]’s successive representation of [the witness]
and Johnson, because there is no risk that attorney-client privileged
information could be implicated in the course of [the attorney]’s cross-
examination of [the witness] on Johnson’s behalf.”). We conclude the
15
risk of revealing any confidences or secrets revealed to Eimermann or
Russell is insubstantial here because Larson and Lauber have
represented through professional statements that they have no
knowledge of such information and have taken prophylactic measures
shielding themselves from it. See United States v. Flynn, 87 F.3d 996,
1001 (8th Cir. 1996) (“In determining whether a conflict of interest exists,
substantial weight is given to defense counsel’s representations.”); Duvall
v. State, 923 A.2d 81, 95 (Md. 2007) (“[D]efense counsel’s representations
about specific conflicts of interests should be credited . . . . Lawyers are
officers of the court and should be treated as such.” (Citation omitted.)).
The record reveals the witnesses have prior criminal convictions.
Notably, however, these histories are not confidential facts. As one
commentator explains:
Loyalty to a client, and the appearance of propriety, are
values that must be protected. However, no rule of ethics
prevents an attorney from confronting a former client in an
unrelated case about “generally known” facts, such as a
felony conviction or other matters . . . of public record.
Jeff Brown, Disqualification of the Public Defender: Toward a New Protocol
for Resolving Conflicts of Interest, 31 U.S.F. L. Rev. 1, 18 (1996)
[hereinafter Brown] (footnotes omitted). Therefore, Larson and Lauber’s
use of the witnesses’ prior convictions for impeachment purposes could
materially benefit McKinley’s defense, but it would not reveal a client
confidence or secret. Iowa R. Prof’l Conduct 32:1.9 cmt. [3] (“Information
that has been disclosed to the public . . . will not be disqualifying.”).
If the matters for which prior representation was provided are not
the same as, or substantially related to, the matters for which the
current representation is provided, the current representation can
continue without the former client’s consent. See Iowa R. Prof’l Conduct
16
32:1.9(a); see also Lowenthal, 93 Yale L.J. at 56 (concluding a witness’s
opposition to defense counsel’s representation of the defendant is
important if “the court finds a substantial relationship between the
earlier representation and the defendant’s case”). We find no evidence in
this record tending to establish a substantial relationship between the
crime charged in this case and the matters for which attorneys in the
public defender’s office previously represented the witnesses.
Accordingly, no conflict has arisen under rule 32:1.9, and Larson and
Lauber are not prohibited under the rule from representing McKinley,
even without the witnesses’ consent. See Lowenthal, 93 Yale L.J. at 57
(“[I]f the relationship between the earlier representation and the
foreseeable issues in the case before the court is not particularly strong,
the risk of an ethical violation is small and the defendant’s choice of
counsel should prevail.”).
Because we conclude there is no actual conflict or serious potential
for conflict in this case, we need not decide whether a potential conflict
arising from Eimermann and Russell’s past representations of the three
witnesses must be imputed to Larson and Lauber. 6
6Conflict-of-interest rules are less strict for lawyers who serve as public officers
or government employees. See Iowa R. Prof’l Conduct 32:1.11 cmt. [2] (“Because of the
special problems raised by imputation within a government agency, [rule 32:1.11]
paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or
employee of the government to other associated government officers or employees
. . . .”). On two occasions, we have indicated the public defender’s office may be a firm
for conflict-of-interest purposes, rather than a government agency. Watson, 620
N.W.2d at 241 (“[A]ll members of the Public Defenders Office were bound to protect [the
witness]’s confidences and secrets. Thus, . . . co-counsel labored under the same
conflict of interest . . . .”); see also Smith, 761 N.W.2d at 72 (describing Watson by
unequivocally stating “both of Watson’s defense attorneys were members of the same
firm (the public defender’s office)”). On the other hand, in Smitherman we phrased
imputation in hypothetical terms, expressing no opinion about whether the entire
public defender’s office was required to withdraw when one individual public defender
was required to do so. Smitherman, 733 N.W.2d at 348 & n.8. We noted “several
authorities recognize that different rules should govern the imputation of conflicts
17
D. Lack of Temporal Overlap or Attorney Overlap. Because our
rules of professional conduct are not alone dispositive on the question of
whether a serious potential for conflict exists, we also consider whether
the disqualification ordered by the district court is justified under
applicable caselaw. As we have noted, neither Larson nor Lauber
represented Rouse, Hickman, or Manuel. Thus, this case is much
different from Watson or Smitherman, in which both the defendant and
the witness were concurrently represented by the same individual
____________________
among government lawyers,” leaving open the question whether public defenders are in
fact government lawyers. Id. at 348 n.8.
Our research reveals courts confronting this question in other states are divided.
For example, Colorado public defenders are deemed government lawyers under the
Colorado Rules of Professional Conduct. Accordingly, conflicts of interest are not
imputed throughout an entire office in that jurisdiction. See People v. Shari, 204 P.3d
453, 459 (Colo. 2009). Similarly, in Connecticut, public defenders are not considered
“members of the same firm.” See Anderson v. Comm’r of Corr., 15 A.3d 658, 665 (Conn.
App. Ct. 2011). On the other hand, Georgia and Maryland treat each public defender
office for a particular circuit, county, or district as a private firm. In re Formal Advisory
Op. 10-1, 744 S.E.2d 798, 799 (Ga. 2013) (per curiam); Duvall, 923 A.2d at 93–95.
Additionally, some states eschew a per se rule in favor of a flexible case-by-case
approach, evaluating the facts of each case individually when determining whether the
public defenders involved in the case work in a firm or as government lawyers. See,
e.g., State v. Severson, 215 P.3d 414, 421, 426–27 (Idaho 2009); Bolin v. State, 137 P.3d
136, 145 (Wyo. 2006). Notably, both McKinley and the State expressly asserted we
should resolve this case on grounds other than whether Larson and Lauber are properly
classified as government lawyers under rule 32:1.11. Accordingly, because we conclude
there is no actual conflict or potential conflict requiring the disqualification of Larson
and Lauber in this case, we accept the parties’ suggestions and leave this issue for
another day.
Furthermore, given our conclusion that the potential conflict does not require or
justify disqualification under the circumstances presented here, it is appropriate to
defer a decision on whether public defenders are government attorneys under our
conflict-of-interest rules until we confront a case in which it might be dispositive. State
v. Mark, 231 P.3d 478, 516 (Haw. 2010) (concluding that because the court found no
conflict at all, “the question of whether [the office of the public defender] acted as ‘a
single firm’ for purposes of this case need not be addressed”); see also State v. Sustaita,
902 P.2d 1344, 1347 & n.2 (Ariz. Ct. App. 1995) (recognizing “[i]t can be argued that . . .
imputed disqualification[] does not apply to the public defender’s office,” but declining
to reach the issue because there was no conflict necessitating withdrawal or
disqualification); cf. Smitherman, 733 N.W.2d at 348 n.7 (finding a waiver issue moot in
light of our ultimate conclusion).
18
attorney for at least a short time. See Smitherman, 733 N.W.2d at 343;
Watson, 620 N.W.2d at 235; see also State v. Cook, 171 P.3d 1282,
1290–91 (Idaho Ct. App. 2007) (stressing representation by different
attorneys within the public defender’s office as an important factor
mitigating any potential conflict); Brown, 31 U.S.F. L. Rev. at 17 (“The
fact that a . . . witness was formerly represented by a different attorney
in the same public defender office representing the accused is unlikely to
dampen the commitment of the accused’s attorney.”). 7
Further, no attorney employed in the same public defender’s office
concurrently represented McKinley and the three witnesses listed by the
State. Instead, the public defenders’ representations of the witnesses
and McKinley is successive. Thus, this case is much different from
Smith, in which two different attorneys from the same firm represented
the defendant and a witness at the same time. See Smith, 761 N.W.2d at
66 (noting the witness “was at that time represented by . . . Montgomery’s
colleague” (emphasis added)). The fact there is no temporal overlap or
attorney overlap in this case bolsters our conclusion that on this record,
no conflict is likely to arise and McKinley’s choice of counsel should be
given effect.
Indeed, this case is analogous in important respects to our
decision in Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981). There, we
said:
Taylor was the state’s principal witness. [Defense counsel]
had represented him in a civil matter . . . a year or so before
the trial of this case. He did not represent Taylor at the time
of trial. This single isolated representation of Taylor on a
7Thiscase is also distinguishable from our recent decision in State v. Vaughan,
___ N.W.2d ___ (Iowa 2015). In Vaughan, as in Watson and Smitherman, the same
individual attorney concurrently represented the defendant and a witness. Id. at ___.
19
wholly unrelated matter does not raise even a remote
possibility of conflict. There is no showing of any probability
of future business . . . . Neither is there anything about that
case which suggests [defense counsel] obtained any
privileged information which would inhibit his representation
of [Nichol].
Id. (internal quotation marks omitted); see also Flynn, 87 F.3d at 1001(“The mere fact that a trial lawyer had previously represented a
prosecution witness does not entitle a defendant to relief.”); Pippins, 661
N.W.2d at 546 (“[The attorney]’s earlier representation of the witness,
Hillman, was not a ‘conflict’ . . . .”). As in Nichol, we conclude on this
record the public defenders’ prior representations of Rouse, Hickman,
and Manuel on unrelated matters raises no serious possibility of conflict
precluding Larson and Lauber from representing McKinley.
We also find support for our conclusion in numerous cases from
other courts in which an attorney’s colleague previously represented a
witness and the court found no disqualifying conflict in a subsequent
criminal case. See, e.g., United States v. Jeffers, 520 F.2d 1256, 1259–
60, 1266 (7th Cir. 1975); United States v. Reynoso, 6 F. Supp. 2d 269,
270–71 (S.D.N.Y. 1998); Lech, 895 F. Supp. at 590; United States v.
Judge, 625 F. Supp. 901, 902–03 (D. Haw. 1986); People v. Shari, 204
P.3d 453, 458 (Colo. 2009); Bouie v. State, 559 So. 2d 1113, 1115 (Fla.
1990) (per curiam); State v. Severson, 215 P.3d 414, 421, 426–27 (Idaho
2009); State v. Hunsaker, 873 P.2d 540, 546 (Wash. Ct. App. 1994); State
v. Anderson, 713 P.2d 145, 148 (Wash. Ct. App. 1986). These cases
further strengthen our conclusion that Larson and Lauber can zealously
represent McKinley at trial.
V. Conclusion.
The district court’s decision disqualifying Larson and Lauber based
primarily on an erroneous application of provisions of the Iowa Rules of
20
Professional Conduct constitutes an untenable ground for the court’s
exercise of discretion. Under the relevant caselaw and our rules of
professional conduct, the prior representations of witnesses in unrelated
matters by other members of the public defender’s office did not present
an actual conflict or a serious potential for conflict that justifies the order
disqualifying Larson and Lauber and countermanding McKinley’s
interest in continuing an attorney–client relationship. 8 We reverse the
disqualification order and remand for further proceedings.
REVERSED AND REMANDED.
All justices concur except Waterman and Mansfield, JJ., who
concur specially.
8We emphasize that our decision is based on the present record. If upon
remand the district court is made aware of new evidence or grounds tending to
establish Larson and Lauber’s representations of McKinley is adversely affected by their
former colleagues’ representation of the witnesses on unrelated matters, further
proceedings addressing the potential conflict may be had.
21
#13–1226, State v. McKinley
WATERMAN, Justice (concurring specially).
I concur with the result of the majority opinion reversing the
district court order that disqualified the entire Des Moines adult public
defender’s office from representing Lavelle McKinley on his murder
charge. I agree there is no conflict or potential conflict arising from the
fact several witnesses had previously been represented on unrelated
charges by other public defenders in this office with screening
procedures in place to prevent misuse of confidential information. I write
separately because the majority misses the opportunity to settle the
recurring legal issue: whether an individual public defender’s conflict of
interest is automatically imputed to the entire public defender’s office.
The answer to that question should be “no.”
Public defenders represent most felony defendants in this state.
Witnesses and victims often have their own criminal histories. The
public defenders are salaried state employees and experienced trial
lawyers who exercise individual independent judgment defending their
clients. The district court erred by automatically imputing conflicts from
one public defender to the entire office, including the two experienced
attorneys McKinley wanted to retain. The automatic imputation issue
was decided below and briefed by the State on appeal. 9 We should follow
9The State in its appellate brief argued against automatic imputation of the
conflicts of an individual public defender to disqualify the entire office. The State
acknowledged the split in authority in other jurisdictions and that the district court
order disqualifying McKinley’s counsel could be reversed without deciding the
automatic-imputation rule. The majority’s reluctance to decide the issue today is based
in part on the appellate public defender’s failure to brief the issue or take a position in
this case. Parties desiring a resolution to this recurring issue in future cases should
make an appropriate record in district court and fully brief the issue there and on
appeal.
22
the well-reasoned decisions of other courts applying equivalent rules of
professional conduct that decline to automatically impute conflicts of
interest of an individual public defender to others in the same office.
Specifically, we should hold that the public defender’s office is not a
“firm” within the meaning of Iowa Rule of Professional Conduct 32:1.10
and that public defenders are “government lawyers” within the meaning
of Iowa Rule of Professional Conduct 32:1.11. Concerns arising from
prior or concurrent representations by other public defenders in the
same office can be resolved through screening procedures.
I. Analysis.
This issue requires analysis of the interplay between several of the
Iowa Rules of Professional Conduct, patterned after the American Bar
Association model rules. 10 Iowa rule 32:1.7(a) prohibits an attorney from
representing a client if doing so “involves a concurrent conflict of
interest.” Iowa R. of Prof’l Conduct 32:1.7(a).
A concurrent conflict exists if:
(1) the representation of one client will be directly
adverse to another client; or
(2) there is a significant risk that the representation of
one or more clients will be materially limited by the lawyer’s
responsibilities to another client, a former client, or a third
person or by a personal interest of the lawyer.
Id. r. 32:1.7(a)(1)–(2). Rule 32:1.9 prohibits an attorney “who has
formerly represented a client in a matter [from] represent[ing] another
10The Iowa Rules of Professional Conduct on conflicts of interest are identical in
relevant part to the ABA Model Rules of Professional Conduct. Iowa Rule 32:1.7
corresponds with ABA Model Rule 1.7; Iowa Rule 32:1.9 corresponds with ABA Rule
1.9; Iowa Rule 32:1.10 corresponds with ABA Rule 1.10, although ABA Rule 1.10
contains additional provisions regarding screening; and Iowa Rule 32:1.11 corresponds
with ABA Rule 1.11. Compare Iowa Rs. of Prof’l Conduct 32:1.7, 1.9, 1.10, 1.11, with
Model Rules of Prof’l Conduct rs. 1.7, 1.9, 1.10, 1.11 (2009).
23
person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former
client.” Id. r. 32:1.9(a). The rule also provides:
A lawyer shall not knowingly represent a person in the same
or a substantially related matter in which a firm with which
the lawyer was formerly associated had previously
represented a client
(1) whose interests are materially adverse to that
person, and
(2) about whom the lawyer had acquired information
protected by [the rules of confidentiality] that is material to
the matter . . . .
Id. r. 32:1.9(b)(1)–(2). Rule 32:1.10 is Iowa’s imputation requirement,
providing that
[w]hile 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 rule
32:1.7 or 32:1.9, unless the prohibition is based on a
personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the
firm.
Id. r. 32:1.10(a) (emphasis added). Finally, Iowa rule 32:1.11 excludes
government lawyers from the imputation requirements of rule 32:1.10(a)
by explicitly subjecting them only to rules 32:1.7 and 32:1.9. See id. r.
32:1.11(d)(1) (“Except as law may otherwise expressly permit, a lawyer
currently serving as a public officer or employee . . . is subject to rules
32:1.7 and 32:1.9 . . . .”).
To automatically impute the conflict of one public defender to the
entire public defender’s office requires two determinations: (1) the public
defender’s office is a “firm” under rule 32:1.10, and (2) a public defender
is not “a lawyer serving as a public officer or employee” under rule
32:1.11. Neither determination should be made here. The better-
24
reasoned decisions have rejected the automatic imputation of the
conflicts of one public defender to the entire office. See United States v.
Reynoso, 6 F. Supp. 2d 269, 271–72 (S.D.N.Y. 1998) (“[I]t does not make
sense to apply to the Federal Defender Division[] the same standards for
disqualification that would apply to a private law firm” and noting “[t]he
American Law Institute has also recognized that imputed disqualification
. . . should not automatically apply to public defender offices”); People v.
Shari, 204 P.3d 453, 459 & nn. 5–6 (Colo. 2009) (holding that a public
defender’s office is not a firm under the imputation rule and that public
defenders are government attorneys); Anderson v. Comm’r of Corr., 15
A.3d 658, 664 (Conn. App. Ct. 2011) (holding that a public defender’s
office is not a firm and that “the plain language of rules 1.10 and 1.11
supports the respondent’s contention that [public defenders are
government attorneys]”); State v. Severson, 215 P.3d 414, 426–27 (Idaho
2009) (holding that a public defender’s office is not a firm for purposes of
imputation and adopting a case-by-case approach); People v. Miller, 404
N.E.2d 199, 202 (Ill. 1980) (rejecting “the notion that a public defender’s
office is to be treated as a law firm or ‘entity’ in considering a conflict of
interest claim”); Bartley v. Commonwealth, 400 S.W.3d 714, 719–20 (Ky.
2013) (utilizing a case-by-case approach to determine whether a conflict
should be imputed within the public defender’s office); State v.
St. Dennis, 244 P.3d 292, 298 (Mont. 2010) (holding that a public
defender’s office is not equivalent to a firm and adopting case-by-case
approach); State v. Bell, 447 A.2d 525, 528–29 (N.J. 1982) (noting the
differences between firms and public defender’s offices); Asch v. State, 62
P.3d 945, 953 (Wyo. 2003) (rejecting “automatic disqualification of
assistant public defenders” because the public defender’s office is not
equivalent to a firm).
25
Other courts apply an automatic-imputation rule to public
defenders. See, e.g., Okeani v. Super. Ct., 871 P.2d 727, 729 (Ariz. Ct.
App. 1993) (“The conflict of interest is not alleviated by the fact that
defendant and the victim were represented by different lawyers within
the Public Defender’s Office.”); Bouie v. State, 559 So. 2d 1113, 1115
(Fla. 1990) (“As a general rule, a public defender’s office is the functional
equivalent of a law firm.”); In re Formal Advisory Op. 10-1, 744 S.E.2d
798, 799–800 (Ga. 2013) (per curiam) (concluding “that Rule 1.10(a)
applies to a circuit public defender office as it would to a private law
firm,” but noting imputing conflicts “imposes real costs on Georgia’s
indigent defense system”); In re Hoang, 781 P.2d 731, 735–36 (Kan.
1989) (noting the disqualifying conflict of one public defender was
imputed to an entire office); Duvall v. State, 923 A.2d 81, 95 (Md. Ct.
Spec. App. 2007) (stating that “at a minimum, each district office of the
public defender should be treated as a private law firm for conflict of
interest purposes”); Richards v. Clow, 702 P.2d 4, 6 (N.M. 1985) (limiting
imputation of conflicts to public defenders within the judicial district or
county rather than statewide); Commonwealth v. Westbrook, 400 A.2d
160, 162 (Pa. 1979) (“[T]he Public Defenders Association of Philadelphia
is a ‘law firm[.]’ ”); State v. Hunsaker, 873 P.2d 540, 542 (Wash. Ct. App.
1994) (“[P]ublic defender agencies qualify as ‘law firms’ for the purposes
of application of the [professional conduct] rules.”); see also Restatement
(Third) of the Law Governing Lawyers § 123 cmt. d(iv), at 289 (2000)
(explaining that the “rules on imputed conflicts and screening of [the]
Section apply to a public-defender organization as they do to a law firm
in private practice in a similar situation”). Significantly, only one of these
cases acknowledged the conflicting authority in other jurisdictions. See
Duvall 923 A.2d at 94 (stating that “jurisdictions remain divided on the
26
issue of how to treat public defender’s offices during a conflict of interest
analysis”). The other cases merely cite the rules or that state’s precedent
without analysis.
In an unpublished opinion, our court of appeals applied the
automatic-imputation rule:
We have no trouble concluding that the public defender’s
office had a conflict of interest due to their concurrent
representation of Brown, a witness adverse to Ibarra’s
interests, and the past representation of Wilson, the victim.4
Although Valorie Wilson and Jennifer Russell had not
previously represented Brown or Wilson, the conflict of other
members of the public defender’s office was imputed to
them. See Iowa Rs. Prof’l Conduct 32:1.7 and 32:1.10.
State v. Ibarra, No. 12–0330, 2013 WL 530558, at *8 (Iowa Ct. App.
Feb. 13, 2013) (footnote omitted). The Ibarra court did not address Iowa
Rule of Professional Conduct 32:1.11 or survey the decisions from other
jurisdictions. Our court should decide the question in a precedential
opinion. 11
Courts take different paths to the conclusion that an individual
public defender’s conflict should not be automatically imputed to the
entire office. Some courts arrive at this outcome by explicitly refusing to
equate public defender’s offices to firms under ABA Model Rule 1.10
without addressing the government lawyer issue. Others reach both
issues. I will address each issue in turn.
11We expressly left open the question in State v. Smitherman, 733 N.W.2d 341,
348 & n.8 (Iowa 2007) (citing authorities concluding the automatic-imputation rule
does not apply to public defenders or government lawyers generally). Several other
opinions, in dicta, suggest that public defenders are subject to the same rules as private
law firms, but those cases were discussing the former rules. See State v. Watson, 620
N.W.2d 233, 241 (Iowa 2000) (citing Iowa Code of Prof’l Responsibility EC 4-2).
27
A. The Public Defender’s Office Is Not Like a Private Law
Firm. The comments to ABA Model Rule 1.10 (Imputation of Conflicts of
Interest) provide that:
For purposes of the Rules of Professional Conduct, the term
“firm” denotes lawyers in a law partnership, professional
corporation, sole proprietorship or other association
authorized to practice law; or lawyers employed in a legal
services organization or the legal department of a corporation
or other organization.
Ellen J. Bennett, et al., Annotated Model Rules of Professional Conduct
178 (2011) [hereinafter Bennett]. The commentators omitted public
defender offices or any government office or agency from the enumerated
organizations falling under the definition of “firm.” The same comment,
with the same omission, accompanies the Iowa rule. See Iowa R. of Prof’l
Conduct 32:1.10 cmt. 1. The ABA annotations also explain that “[a]
government law office is also ordinarily considered a ‘firm’ for purposes of
the ethics rules . . . , but the imputation of conflicts in government law
offices is regulated by Rule 1.11 rather than Rule 1.10.” Bennett at 181
(emphasis added). These comments indicate the drafters of the ABA
Model Rules and Iowa rules never intended for public defenders to be
subject to the automatic imputation of conflicts of interest. The better-
reasoned decisions interpreting the model rules have held public
defender’s offices are not firms for purposes of imputing conflicts.
The Montana Supreme Court distinguished public defender’s
offices from private law firms as follows:
In deciding upon the approach to be taken in OPD
[Office of Public Defender] conflict of interest cases, we
consider among other factors the unique nature of public
defender offices as opposed to private law firms. Unlike
private law firms, the OPD is a not-for-profit public entity
with a single source of clients engaged in a single type of
legal proceeding. The OPD does not solicit clients or accept
referrals from the public. Moreover, the attorneys are
28
salaried employees rather than participants in the profits
and revenue generated by a law firm. As such, their
compensation is not driven by their success or failure.
St. Dennis, 244 P.3d at 297–98 (citation omitted). The Wyoming
Supreme Court elaborated on the differences between public defenders
and lawyers in private law firms:
[P]ublic defenders who are subject to a common supervisory
structure within an organization ordinarily should be treated
as independent for purposes of [imputing conflicts of
interest]. The lawyers provide legal services, not to the
public defender office, but to individual defendants.
Ordinarily, the office would have no reason to give one
defendant more vigorous representation than other
defendants whose interests are in conflict. Thus, while
individual defendants should be represented by separate
members of the defender’s office, the representation of each
defendant should not be imputed to other lawyers in an
office where effective measures prevent communications of
confidential client information between lawyers employed on
behalf of individual defendants.
Similarly, there is no financial incentive for attorneys
in a public defender’s office to favor one client over another.
The public defender does not receive more money if one
client prevails and another does not. An assistant public
defender, as a salaried government employee, simply does
not have the financial interest in a case that is inherent in
private practice.
Asch, 62 P.3d at 953 (citations omitted) (internal quotation marks
omitted). The Idaho Supreme Court reached the same conclusion:
“[A]utomatically disqualifying a public defender where
another attorney in the office has a conflict of interest would
significantly hamper the ability to provide legal
representation of indigent clients. This, together with the
fact that such concurrent representation by public defenders
generally will create no incentive (economic or otherwise) for
diminished advocacy in such cases, convinces us that a
per se rule imputing conflicts of interest to affiliated public
defenders is inappropriate where there is no indication the
conflict would hamper an attorney’s ability to effectively
represent a client.”
Severson, 215 P.3d at 426 (quoting State v. Cook, 171 P.3d 1282, 1292
(Idaho Ct. App. 2007)). As noted above, the cases imposing an
29
automatic-imputation rule by treating public defender offices like private
law firms did so without analysis.
The automatic-imputation rule also increases the burden on
taxpayers. When an entire public defender’s office is disqualified, private
contract attorneys must be paid at hourly rates or a distant public
defender must be brought in with attendant travel time and expense.
The Asch court observed:
[I]t goes without saying that an experienced public defender
who specializes in criminal defense is a valuable asset within
the criminal justice system, especially to the indigent
defendant. Furthermore, given Wyoming’s many small
communities, with a limited number of lawyers, it could be
difficult in many cases even to find local counsel for a
defendant.
[Another] reason to avoid an automatic disqualification
rule for imputed conflicts of interest among assistant public
defenders is fiscal. Paying outside counsel every time there
are multiple defendants in a case would, no doubt, be quite
an expense for the taxpayers of the state. Where there has
been no showing of an actual conflict of interest, and thus
no showing of prejudice to the defendants, the minimal
benefit of a per se rule would not justify the additional
expense. While we cannot and should not “put a price on”
the legal representation we provide to indigent defendants,
the judicial branch of government still has an obligation to
be fiscally responsible.
62 P.3d at 953–54. The same court also addressed the concern that
substitute counsel may be less experienced and less competent:
Another reason to adopt a case-by-case inquiry for
conflicts of interest within the State Public Defender’s Office
is that to do otherwise would needlessly jeopardize the right
of individual defendants to skilled and competent
representation. As noted by the Illinois Supreme Court, “[i]n
many instances the application of such a per se rule would
require the appointment of counsel with virtually no
experience in the trial of criminal matters, thus raising, with
justification, the question of competency of counsel.”
Id. at 953 (quoting People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979)).
30
These decisions are persuasive and should be followed. The
concerns outlined by these state supreme courts are raised in the case
before us. McKinley, facing life in prison, chose to continue with his
experienced trial lawyers from the Des Moines adult public defender’s
office rather than proceeding with a less-experienced lawyer from the
juvenile public defender’s office. Moreover, in many areas of the state,
disqualification of the resident public defender’s office requires
appointment of private contract attorneys or public defenders located
farther away and at greater expense.
The best way to ensure that defendants receive conflict-free
counsel while preventing the unnecessary disqualification of public
defenders is by adopting a screening process sufficiently thorough to
protect against the concerns giving rise to the imputation requirement.
The Shari court outlined Colorado’s screening process, which the court
found sufficient to assuage “any concerns regarding the communication
of confidential information from the public defenders who previously
represented the prosecution’s witnesses . . . .” 204 P.3d at 459. There is
no reason screening policies would not work equally well in Iowa.
B. Public Defenders Are Government Attorneys. While
excluding public defender offices from the definition of firm under the
Iowa Rules of Professional Conduct is sufficient to avoid automatic
imputation, I also believe that public defenders are “lawyer[s] currently
serving as . . . public officer[s] or employee[s]” within the meaning of
Iowa Rule of Professional Conduct 32:1.11 and are thereby exempted
from automatic imputation for that additional reason. Both the Colorado
Supreme Court and the Connecticut Court of Appeals came to the same
conclusion. Shari, 204 P.3d at 459; Anderson, 15 A.3d at 664. As the
Shari court explained:
31
Conflicts particular to individual lawyers within a firm can,
in certain circumstances, be imputed to the entire firm.
However, Rule 1.10 specifically states that [t]he
disqualification of lawyers associated in a firm with former or
current government lawyers is governed by Rule 1.11. Rule
1.11, in turn, subjects government lawyers to Rules 1.7 and
1.9. The comments to Rule 1.11 make clear that a
government attorney’s individual conflicts are not imputed to
the entire government agency for which he works. In
accordance with Rule 1.11, we have recognized that a
distinction must be drawn between an attorney in private
practice with a traditional law firm and an attorney
associated with a large public or governmental agency.
204 P.3d at 459 (footnotes omitted) (citations omitted) (internal quotation
marks omitted). Shari’s facts mirror the case before us. 12
Like Colorado, Iowa excludes from imputation “a lawyer currently
serving as a public officer or employee.” Iowa R. Prof’l Conduct 32:1.11.
Using the plain language of Iowa provision, it is evident that public
defenders are included within this definition. Public defenders are
salaried employees paid by the state. Accordingly, a public defender is a
“lawyer currently serving as a public . . . employee.” Compare Colo. R. of
Prof’l Conduct 1.11, with Iowa R. of Prof’l Conduct 32:1.11(d). As such,
they are governed by Iowa Rule of Professional Conduct 32:1.11 and
excluded from the imputation requirements of rule 32:1.10. 13
12Shari involved a defendant charged with several counts of murder who had
been assigned two defense attorneys from the public defender’s office. 204 P.3d at 455.
After a date for the initial hearing was set, “the People filed a motion for conflict-free
counsel,” alleging “that the entire Office of the State Public Defender . . . should be
disqualified from representing [the defendant] because of the Office’s prior
representation of the People’s three primary witnesses against [the defendant].” Id.
Although the trial court “recognized that neither [of the attorneys] was individually
involved in any of the three witnesses’ cases,” the court nonetheless disqualified the
attorneys “because other attorneys within the Public Defender’s Office had represented
the witnesses.” Id. at 455–56.
13The comments to the rule support this interpretation. Iowa R. of Prof’l Conduct
32:1.11 cmt. [2] (“Because of the special problems raised by imputation within a
government agency, paragraph (d) does not impute the conflicts of a lawyer currently
serving as an officer or employee of the government to other associated government
officers or employees, although ordinarily it would be prudent to screen such lawyers.”);
Model Rule of Prof’l Conduct r. 1.11 cmt. [2] (same).
32
It is disappointing the majority today fails to take the opportunity
to settle this recurring legal question. Until the automatic-imputation
issue is resolved by court decision or rule amendment, our trial courts
will continue to struggle case-by-case with public defender intraoffice
conflicts. Sadly, unnecessary disqualifications will continue. The
practical consequences often will be increased taxpayer expense and
defendants who proceed with substitute counsel instead of counsel of
their choice.
Mansfield, J., joins this special concurrence.