Amended May 21, 2015 State of Iowa v. Lavelle Lonelle Mckinley

• Court: Supreme Court of Iowa
• Decided: March 13, 2015
• Docket: 13–1226
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 13–1226

Filed March 13, 2015

Amended May 21, 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

7This case is also distinguishable from our recent decision in State v. Vaughan,

859 N.W.2d 492 (Iowa 2015). In Vaughan, as in Watson and Smitherman, the same individual attorney concurrently represented the defendant and a witness. Id. at 495– 96. 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. 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 trial

lawyers from the Des Moines adult public defender’s office rather than

proceeding with a 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 the 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.