Disciplinary Commission issues advisory opinion on limited representation for public defenders 

(Photo courtesy of Indiana Supreme Court)

The Disciplinary Commission issued an advisory opinion Thursday outlining how public defenders can efficiently navigate limited representation while representing a defendant at an initial hearing.  

If a county or court allows a single public defender to represent all defendants who qualify in a day’s initial hearings, the public defender must limit the scope of representation and let clients know of that limited scope.  

To protect the client’s interests, the public defender must also be able to request additional attorneys or expand the scope of representation if necessary.  

When representing a defendant, a public defender should consider the following rules: 

• An attorney is permitted to limited representation but must explicitly communicate that limited representation to the client(s). Indiana Professional Conduct Rules 1.2, 1.4 
• An attorney must talk with a client about relevant limitations on the lawyer’s representation. Indiana Professional Conduct Rule 1.4 
• An attorney shouldn’t reveal information relating to the representation of a client unless the client gives consent, and the information isn’t being used to the benefit or detriment of another client. Indiana Professional Conduct Rules 1.6, 1.9, 1.18 
• An attorney shouldn’t represent a client when their ability to advocate for them is materially limited by a duty owed to another client. Indiana Professional Conduct Rules 1.7, 1.9 
• If a public defender is assigned to represent two or more clients with conflicting interests, the public defender can only continue to represent them if each party gives written consent. Indiana Professional Conduct Rules 1.7(b) 

The Commission also offered ethical minefield scenarios applying the above rules: 

Minefield #1 – Limitations on the scope of representation 

Hypothetical #1: Public Defender A is assigned to represent Defendant B at an initial hearing and communicates to Defendant B that the scope of representation is limited to making sure Defendant B is aware of his or her legal rights and the charges faced and to advocating on Defendant B’s behalf for pretrial release conditions. Public Defender A further explains that Defendant B should not discuss in any detail the underlying facts of the criminal charge(s) with Public Defender A. Prosecutor C communicates to Public Defender A a plea offer (or an offer to resolve the criminal matter with a diversion agreement) available to Defendant B. Public Defender A is concerned about communicating this offer to Defendant B because Public Defender A does not have sufficient information, nor has Public Defender A had time to conduct an investigation regarding the facts of the case and potential defenses. 

In this scenario, the Commission argues that the public defender’s duties of competency, representation and communication under Conduct Rules 1.1, 1.2 and 1.4 outweigh maintaining a limited scope of representation. Instead of maintaining the limited scope, the public defender should expand the scope to gather important facts from the client to provide the proper advice on the agreement offered by the prosecutor.  

Minefield #2 – Advising clients of rights 

Hypothetical #2: Public Defender A is appointed to represent Defendant B at an initial hearing. Public Defender A communicates the limited nature of the representation and advises Defendant B about legal rights, charges filed, and that Defendant B will be represented by a different public defender after the initial hearing. Public Defender A advises Defendant B that (1) Defendant B has an attorney and (2) Defendant B has the right to refuse to answer any questions by law enforcement about the case. Public Defender A has received criticism for advising defendants, including Defendant B, that they can refuse to speak to law enforcement, under the guise that this advice is outside of Public Defender A’s limited scope of representation. Should Public Defender A be concerned that this advice is outside the limited scope? 

In this scenario, the public defender was correct in advising the defendant of their legal rights, including the right to not speak to police. Regardless of limited scope, an attorney must advise a client of their legal rights. Comment 7 of Conduct Rule 1.2 says the limitations of the representation don’t exempt a lawyer from the obligation to provide competent representation.  

Minefield #3 – Conflicts of interest 

Hypothetical #3: At an initial hearing, Public Defender A is assigned to represent Defendant B and Defendant C, who are in a domestic relationship. Defendant B is accused of domestic battery on Defendant C, and Defendant C is charged with possession of marijuana. The State has requested a no-contact order and a stayaway order for Defendant B from the home where Defendant B and Defendant C reside. Under these circumstances, may Public Defender A ethically represent both Defendant B and Defendant C at the initial hearing, advise them of the charges and potential penalties, and advocate for their pretrial release? 

In this case, the public defender must adhere to fourth rule shown above, determining whether “there is a significant risk that [his or her] ability to consider, recommend, or carry out an appropriate course of action for [one of] the client[s] will be materially limited” by the public defender’s duty to the other client. 

Minefield #4 – Duties to former clients 

Hypothetical #4: Public Defender A is appointed to represent Defendants B, C, and D at their initial hearings for criminal charges arising from the same incident. Public Defender A did not gather any information regarding the underlying matter from Defendants B, C, or D. Following the initial hearing, Public Defender A is appointed to represent Defendant B for the criminal matter. However, Public Defender A has just been informed that Defendant C is a witness against Defendant B in the matter. May Public Defender A continue to represent Defendants B? 

According to the Commission, if the public defender didn’t gather specific information from the defendants during the initial hearing, they can represent Defendant B in the criminal matter because of the limited nature of the representation at the initial hearing stage.  

However, if the public defender received the confidential information during the initial hearing stage, Conduct Rule 1.9(c) and 1.18(b) would apply, and Defendant B’s case could be affected by the information.  

In conclusion, the Commission emphasizes a lawyer’s obligation to provide competent representation and to keep a client informed regardless of the limited scope of the representation.