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Monday, November 02, 2009

Ind. Law - "When a public defender is also a defendant"

That is the headline to this long, front-page story today in the Indianapolis Star, reported by Heather Gillers. Here is the side-bar summary:

The issue: Should a defense attorney who is facing criminal charges disclose that information to a client who is facing charges filed by the same prosecutors?

What we found: Many legal experts believe this is a conflict of interest. Federal courts and the American Bar Association also believe attorneys should disclose such information, but no law requires it -- and neither does the Marion County public defender -- typically leaving such decisions to attorneys. Some attorneys do. But some don't.

The story begins:
When Mark Batey met with his public defender earlier this fall about a pending battery charge, Batey had no idea how well the attorney understood his predicament.

At the same time Batey's lawyer was representing him, that lawyer was fighting the same charge -- battery -- from the same Marion County prosecutor's office.

But Batey didn't find out about the potential conflict back then. He found out late last month.

And he didn't find out from his lawyer or anyone else in the public defender's office. He found out from The Indianapolis Star.

Batey's case is not unique. Because there is no legal requirement to disclose such information, The Star found it is mostly left up to individual attorneys to make that call. And they don't always do so.

All of which troubles legal experts, who think defense attorneys should disclose such potential conflicts of interest to their clients. Federal courts also have held that attorneys need to disclose such information.

The problem, they stress, is the temptation for a defense attorney to defend a client less vigorously either to curry favor with prosecutors or to at least not antagonize them.

Failing to tell a client about a pending charge from the same prosecutor's office, several law professors said, likely violates professional responsibility rules that say clients have a right to know when lawyers' personal interests conflict with those of their client.

"There is no doubt in my mind that the best way to proceed is for the lawyer to fully inform the client," said Charles G. Geyh, associate dean of research at Indiana University Maurer School of Law in Bloomington. "Failing to do so would probably be a violation of the rule."

But individual attorneys have different opinions on just how to define a personal conflict of interest.

Marion County's chief public defender, Robert Hill, said a pending charge -- even from the same prosecutor's office -- is not a conflict of interest and therefore need not be disclosed under professional responsibility guidelines. His predecessor, David Cook, also did not require disclosure.

Posted by Marcia Oddi on November 2, 2009 10:32 AM
Posted to Indiana Law