v.
_______________________________
v.
JOHNNY
O’BRIEN, Defendant.
_______________________________
v.
High Court of
Trial Division
Before KRUSE, Chief Justice, TAUANU`U, Chief
Associate Judge, and SAGAPOLUTELE, Associate Justice.
Counsel: For Plaintiff, Lionel Riley, Assistant
Attorney General
For Defendant, Christian Amani, Tautai A.F.
Fa`alevao, Public Defender
For Defendant, Johnny O’Brien, Loretta Townsend, Assistant
Public Defender
For Defendant, Senati Auau (a.k.a. Snag),
[1] The representation of more than one accused
by the same attorney is not per se violative of the Sixth Amendment’s
constitutional guarantee of effective assistance of counsel. [2ASR3d72]
[2] No bright-line rules exist with respect to
situations involving conflicts of interest in a criminal case; the court must
look at the particular facts to determine whether a Sixth Amendment violation
is present.
[3] The Sixth Amendment does not guarantee an
accused the right to perfect representation, but merely adequate and fair
representation.
[4] In order to prove that a Sixth Amendment
violation exists, the defendant must show both that: (1) counsel’s performance
was deficient, having made errors so serious that counsel was not truly
functioning as “counsel”; and (2) the deficient performance prejudiced the
defendant’s defense.
[5] The United States Supreme Court defines the
standard for judging attorney performance as that of reasonably
effective assistance considering all the circumstances.
[6] A potential conflict of interest does not
rise to the level of a constitutional violation; an actual present conflict of
interest must exist to trigger judicial review.
[7] Where Deputy Public Defender was closely
related to co-defendant and client-defendant asserted co-defendant, not he, was
the culpable party, zealous representation of client would be directly adverse
to the interests of relative and therefore conflict of interest existed which
foreclosed representation by Deputy Public Defender.
[8] Where court directed Public Defender’s
Office to assign a separate, single attorney for each defendant, but to assign
them in such fashion as the office preferred, conflict of interest which was
subsequently created was an artificial one and the result of office
mismanagement.
[9] Assignment of attorneys to criminal
defendants within the Public Defender’s Office when imprudent and resulting in
an “artificial” conflict of interest can be cause for sanctions.
ORDER GRANTING AND DENYING MOTIONS TO
WITHDRAW AS COUNSEL
Introduction
Co-defendants,
The District Court Judge denied the motion. Counsel then sought a civil writ of mandamus
from the High Court to compel the District Court Judge to grant the motion to
withdraw and assign counsel from the private bar, at further public expense, to
two of the defendants. See Amani v.
Facts
For purposes of this hearing, the facts, as may
be gleaned from the file and record before us, are that:
The next day, police officers interviewed the
three defendants but received conflicting versions of events from them. Amani admitted his involvement in the
incident, stating that he and a “
Auau admitted his presence during the incident,
but then stated that “he had nothing to do with it,” possibly meaning the
actual beating. (Affidavit in Support of
Arrest Warrant, dated January 27, 1998, p. 2, ¶ 3.)
Discussion
[1-2] The Public Defender’s Office
believes that these defendants’ constitutional rights are compromised because
of a conflict of interest. However, the
representation of more than one accused by the same attorney is not per se
violative of the Sixth Amendment’s constitutional guarantee of effective
assistance of counsel.
[3-5] At the same time, the
court must also bear in mind that an accused is not constitutionally guaranteed
the right to “perfect representation,” but merely adequate and fair
representation. See Strickland,
466
“[T]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial court cannot be relied on
as having produced a just result,” a rather high bar to hurdle for one claiming
ineffective assistance of counsel.
Furthermore, in the instant case, the Public
Defender’s argument of ineffective assistance of counsel is further attenuated
since each defendant will in fact have his own attorney, albeit within the same
office. This situation distinguishes it
from cases cited in defendants’ motion such as Holloway v. Arkansas, 435
We understand the constraints and limited
resources facing the Public Defender’s Office.
Although we empathize with this plight,[4] the
need for flexibility is simply a fact of life here in
First: Weekly Office Meetings
We do not believe it is necessary to discuss
these particular cases at the weekly meetings.
While weekly discussion generally may be a good learning device, suspension
of this practice in one instance would not be likely to wreak havoc with the
entire workings of the Public Defender’s office—and would probably present a
minimal inconvenience at the very worst.
Most law offices hold weekly meetings so that lawyers
have the opportunity to apprise colleagues of their caseload. But in many situations, such as with cases
involving sensitive issues or potential conflicts of interest, lawyers
routinely refrain from the free discussion of information. The legal profession as a whole is very
conscious of risk management and firms, when necessary, are adept at cordoning
off its lawyers to limit their access to information by erecting an imaginary
wall between its lawyers.[6]
Second: Current Approval Procedure regarding
Plea Bargains
We cannot see how the Public Defender’s
procedure of signing off on plea bargains necessarily constitutes a conflict of
interest. First of all,
Third: Shared Resources
We do not believe that sharing a secretary among
three lawyers is necessarily problematic, or indeed worrisome enough to
necessitate constitutional review.
Elsewhere, secretaries in law offices often support more than one
attorney, however this arrangement seldom produces a problem. Members of the support staff are expected to
maintain professionalism, discretion, and confidentiality. Even if the Public Defender secretary grasps
the legal nuances of cases she may handle, we see no reason for her to discuss
the case of one lawyer with another lawyer.
So too with the investigators.
Support staff need only answer to the individual assigning the
task.
Fourth: Inexperience of
Even though
Fifth: Conflicting Stories
Counsel appear distraught that the defendants’
versions of events conflict. That a defendant’s story will differ with that of
another co-defendant or change depending on the time of day is a reality of
criminal defense. We are simply unable
to grasp how this truism translates into a conflict of interest.
The court offers this listing of
suggestions. With each suggestion given,
[2ASR3d78] other possibilities to
minimize potential conflicts surely exist.
While they may be inconvenient for counsel, they are not impossible to
ferret out and implement. We, therefore,
direct the Public Defender to explore additional ways in which to minimize any
potential conflicts of interest, including working with the Attorney General’s
office. We also note that
[6] Furthermore, the above
discussion assumes—rather generously—that a conflict indeed exists. However, we are in fact dealing with a potential
conflict.[9] In this order, we essentially have been
indulging the Public Defender’s evanescent spectre of the sheer possibility
of a conflict. Notwithstanding our
willingness to entertain this argument, the fact still remains that a potential
conflict of interest does not rise to the level of a constitutional violation.
We have assessed the Public Defender’s arguments
using an objective standard of reasonableness according to the facts of this
specific situation and agree with the District Court’s findings regarding the
representation of
In sum, inconvenience, while not pleasant, is a
fact of life, especially in a small territory with financial limitations. It does not translate, however, into
justification for the independent assignment of counsel. Moreover, the wise allocation of resources
militates against this superfluous request.
Ms. Folau’s Relationship to O’Brien
[7]
[8] We feel it necessary,
however, to note the role the Office of the Public Defender itself had in the
orchestration of this conflict, a fact upon which we look with great
disfavor. This conflict of interest was
artificially created by defense counsel.
The defendants were assigned by the District Court to the Public
Defender’s Office one defendant to one attorney “however they liked.” The District Court in no way specified which
attorney was to be assigned to which defendant.
In fact, lest an iota of confusion exists,
We cannot say with certainty who is at fault for
this artificially-created conflict—whether Ms. Folau failed to inform others in
the office of the conflict of interest she has with Mr. O’Brien, whether Mr.
Tautai knew about the conflict before the confidentiality of the cases was
breached and would have been in the position to have stopped the conflict, or
whether Ms. Townsend simply took the case at random without inquiring into the
possibility of a conflict of interest.[12] What we do know for certain is that this
“conflict” could easily have been short-circuited with the assignment of
[9] The fund allocated the
court in the current financial year for pro bono legal defense is
limited and seriously depleted. The
conflict and its attendant public expense are unnecessary. The Public Defender would do well to heed the
realities of a very limited pro bono legal defense fund and employ
better case management. Future mistakes
entailing needless and additional public expenditure may well attract
sanctions.
Conclusion
It is so Ordered.
**********
[1]
[2] Whether a lawyer can fairly and adequately
protect the interests of multiple clients in these and similar circumstances depends
upon an analysis of each case. In
certain circumstances, there may exist little chance of the judgment of the
lawyer being adversely affected by the slight possibility that the interests
will become actually differing, in other circumstances, the chance of adverse
effect upon his judgment is not unlikely.
Ethical Considerations 5-17 (emphasis added).
[3] The
[4] The Public Defender’s Office does not have a
monopoly on stretched resources.
[5] In searching through the record, we find five
reasons cited by the three attorneys for a potential conflict of interest as
follows: current practice of weekly attorney meetings; shared support
staff—secretary and investigators, and small shared office; current practice of
the Public Defender’s signing off on plea negotiations; Ms. Folau’s
inexperience in criminal law; and defendants’ conflicting versions of
events. We will address each in turn.
[6] This is an accommodation that is routinely
implemented so that a firm may meet the needs of its clients, without
jeopardizing the interests of other clients or harshly penalizing its own
attorneys. See American Bar
Association Model Rules of Professional Responsibility, Rule 1.9 (which regards
the conduct of a lawyer who has formerly represented a client in a matter and
whether that lawyer may represent another client in the same or substantially
similar matter.)
A lawyer wishing to move from the public
sector to the private sector would be “unhirable,” essentially frozen in place,
if the law did not make an accommodation for him and the basket of potential
conflicts of interest he likely brings with him. Therefore, for the policy reason of wanting
to encourage attorneys to work in the public sector, the law allows an
artificial or imaginary wall to be placed between her and her colleagues. The law freely allows this accommodation to
minimize any conflicts of interest and uphold the integrity of the legal system
and not unfairly penalize its lawyers.
[7] Lawyers often effectively consult with their
colleagues regarding point of laws without compromising their client’s
confidentiality, for example. Lawyers do this all the time—speaking in terms of
generalities, hypotheticals, past cases.
We have confidence in our attorneys’ flexibility and adaptability.
[8] See District
[9] The Public Defender himself probably best assessed
the situation: “[the conflict] is something that has not yet taken place, but
[is only] a potential conflict here.”
District
[10] See Transcript of
Proceedings,
[11] Tautai:
“. . . I don’t know which counsel I represent.
The Court has ordered specifically -- says I represent who?”
The District
Court: “Counsel, it’s my understanding you represent
Tautai: “Can
we have a choice?”
The Court:
“Counsel, it’s my understanding that you were representing the defendant seated
behind you.”
Tautai:
“Who’s that? I don’t know which of the
defendants I’m representing and that’s why I’m inquiring.”
The Court: “I
did not specify it. When the Public
Defender’s Office was appointed to represent these individuals, I directed
counsels to take one defendant per one attorney however they may be allocated.”
District Court
Reporter’s Transcript of Proceedings,
[12] During the hearing in support of counsel’s
motion to withdraw, counsel