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Denny_Crane

Conflicted Investigator

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Appointed counsel has frequently asked the court if he/she and his/her office can withdraw or be removed from representing a client due to conflict. The judge denies these requests.

 

So, counsel next sends an investigator from the PD office to interview his/her client and review police reports and do investigative work. The investigator in question has a personal and professional relationship with many of the state and defense witnesses and makes his/her bias openly known to the client, often siding with his/her associates against the client.

 

Previous counsel has not used this investigator for this case due to his/her professed conflicts, but the current appointed counsel insists on this assignment.

 

Is there a procedure in Illinois for removing a investigator from a case? Is it all up to the attorney managing the case? If counsel is deemed to not be conflicted, does that cover his/her choices of third-party support staff? Is the purposeful assignment of a possibly conflicted support staff prejudical or a conflict in and of itself?

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The fact that there is a conflict does not automatically make the attorney or the support staff unable to represent the defendant. The court must decide whether the nature of the conflict is such that the defendant will not receive adequate representation. If the court believes the attorney and/or investigator will do a good job despite the conflict, the attorney and/or investigater will not automatically be disqualified. If I remember previous postings on this question, the court has already considered the question and refused to disqualify the attorney. The ultimate question may be resolved later if the defendant is convicted and the appeals court finds the defendant received inadequate representation. You are assuming the trial court should find the defendant will receive inadequate counsel before the trial begins. That won't work.

Obviously, the nature of the case and available resources are factors that may enter into the courts decision. If the case is relatively minor and/or simple and there are no economicaly feasible alternative attorneys available, that will intrinsically weigh on the court's mind, even if not explicitly stated.

Since the court has not disqualified the attorney in this case, I would assume the investigator, who is being overseen by the attorney, will not also be disqualified.

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The court must decide whether the nature of the conflict is such that the defendant will not receive adequate representation.

 

Thank You RetiredinVA, your insights have always been helpful.

 

The matter mentioned here is a new wrinkle. The PD office as a whole has asked to be removed from the case multiple times. The first several appointments were allowed to withdraw citing and noting their conflicts. The investigator mentioned here was first assigned by one of those deputies who later was allow to withdraw (so the investigator was then removed also).

 

Now, the investigator was reassigned. Counsel claims they have no choice in the matter. They do not want to be on the case and argue that they have no control in what investigator gets assigned.

 

This issue has yet to be raised in court. The concerns are, if assignment of this investigator is being motivated by an established conflicted party and those supervisors have consistently and repeatedly assigned conflicted counsel and now this investigator is that sufficent to show an established bias?

 

To correct your misimpression RetiredinVA , counsel claims that they are not directly responsible for this investigator: his assignment, his oversight, his investigations, etc. From your or others experience does this sound possible or correct?

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If counsel works in an office with their own investigators, it would be the supervisor who assigns investigators.  In PD offices, it's the chief investigator that does the assigning.  Attorneys don't get to pick and choose in those situations.

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In the matter of the allegedly conflicted attorney, keep in mind that attorneys in the public defender's office will sometimes be called upon to defend individuals they despise in cases that turn their stomaches. If they can't do it, they need to leave the public defender's office.

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In the matter of the allegedly conflicted attorney, keep in mind that attorneys in the public defender's office will sometimes be called upon to defend individuals they despise in cases that turn their stomaches. If they can't do it, they need to leave the public defender's office.

If this is the case I'm thinking of, this defendant is charged with murdering a local defense attorney who was his assigned public defender in another case.  All the attorneys in the area are conflicted.  I think he's on his fourth appointed attorney right now who has sought to be relieved but the judge has denied it.

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"A criminal defendant has no right to choose his appointed counsel or insist on representation by a particular public defender."

 

People v. DeRossett, 262 Ill.App.3d 541, 543-44, 199 Ill.Dec 903, 634 N.E.2d 1257 (1994).

 

Does this apply?

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The defendant never has the right to dictate who the attorney uses to investigate the case for them.

 

In this case, counsel claims he does not have a choice either on who he can use as an investigator.

 

So, what can be done?

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Is there a procedure in Illinois for removing a investigator from a case? Is it all up to the attorney managing the case? If counsel is deemed to not be conflicted, does that cover his/her choices of third-party support staff? Is the purposeful assignment of a possibly conflicted support staff prejudical or a conflict in and of itself?

 

Not sure this will help (California case):

 

14 Cal.Rptr.3d 400; 119 Cal.App.4th 304

 

CITY AND COUNTY OF SAN FRANCISCO v. COBRA SOLUTIONS, INC.

 

Does the City Attorney's prior representation of the target of a public investigation in matters substantially related to that investigation require vicarious disqualification of the entire City Attorney's Office? We hold that it does. Public confidence in the administration of justice and the integrity of the bar requires that both the City Attorney and his office be disqualified...

 

At the intersection of law and politics, where this head of office case lies, the preservation of the public trust in the scrupulous administration of justice and the integrity of the bar must be the paramount concern. In the City Attorney's prosecution of a former client for fraud, the public cannot be left to wonder whether their top civil lawyer is vigorously representing their interests, maintaining professional objectivity, and keeping inviolate his former clients' confidences. We can ill afford the shades of doubt about the rectitude of our elected officials and our lawyers who are behind a screen. The stakes are too high for the politician's career, for the citizens who deserve his unwavering loyalty, and for the former clients who trust him to maintain their confidences. Like the dissent, we believe that lawyers take their ethical responsibilities seriously...

 

It is, of course, significant that the conflicted attorney has office-wide supervisory responsibilities, or helps in the formulation of office policy or plays a major role in the hiring, firing and promotion of subordinates. But, in evaluating the effectiveness of any screen imposed, other factors should come into play. For example, the size of the office should be considered, at least to the extent it affects the number of levels of supervision, and, therefore, the ease with which another supervisor can replace the conflicted office head in the current case. Further, the trial court should consider whether the attorneys actually handling the case, and the office files they utilize, are in the same physical location as the disqualified head of the office...

 

Some things to also consider. So, the question remains... is there a Illinois equivalent?

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Not sure this will help...

 

Thanks, Dogg for trying...

 

True, the head PD was conflicted off the case. Other conflicted attorneys were appointed and removed. Some testified that their supervisors knew they were conflicted prior to their appointment, but their bosses still went ahead and designated them to handle the case anyway.

 

The matter now is this lone investigator. Requesting a replacement has come up empty. Originally, he was appointed by supervisors who have now been removed (so he was removed). This conflicted investigator has now been reinstated. He refuses to investigate crucial aspects of the case frustrating counsel and the defendant. Counsel claims the matter is outside his control.

 

Do the Professional Rules in Illinois cover this? Complaints to the ARDC won't help, he's not an attorney. Can an entire office be cited? These questions are in preparation for upcoming hearings. The court has yet to rule on these matters.

 

LegalwriterOne, it is frustrating, but thank you for your insights...

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No, there isn't.   The Rules of Professional Responsibility in CA are more comprehensive.  In CA, if there's a conflict with a PD, the entire office is conflicted off, not just the assigned attorney.

 

What about this:

 

RULE 1.4: COMMUNICATION

(a) A lawyer shall:

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law*.

 

*[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e)*.

 

*(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

 

No informed consent?

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Thanks Dogg, I'm unsure that helps either. I've always been guided by:

 

Some combinations of relationships among lawyers and clients are, by themselves, enough to create disqualifying conflicts of interest. For example, a conflict exists when a lawyer represents both the victim of a crime and the defendant accused of committing that crime. People v. Stoval, 40 Ill.2d 109, 112 (1968). Illinois authority describes such circumstances as ones of per se conflict of interest. Representation by counsel acting under a conflict violates the defendant's right to counsel, unless the defendant has knowingly waived the right to conflict-free counsel. Stoval, 40 Ill.2d at 111-14.

 

At one time, the Illinois Supreme Court held that, when one member of a public defender's office must attack the effectiveness of another member of that office, a per se conflict exists. See People v. Smith, 37 Ill.2d 622, 623-24 (1967). 

 

However, in Banks, the supreme court overruled its decision in Smith, holding that, in such circumstances, one may generally assume that a public defender can overcome any sense of allegiance to fellow defenders and can give his or her full loyalty to the client. Banks, 121 Ill.2d at 43. Thus, "where an assistant public defender asserts that another assistant from the same office has rendered ineffective assistance, a case-by-case inquiry should be conducted to determine whether any circumstances peculiar to the case indicate the presence of an actual conflict of interest."

 

This citation concerns post-conviction assertions.

 

Yet to find a case concerning conflicted staff of a public defenders office and whether inquiry is required.

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Don't know if this will help either (from People v. South, 387 N.E.2d 1294):

 

Defendant asserts that the use of the common investigator by the public defenders and his use of cards identifying himself as the investigator of the office of the Sangamon County Public Defender creates the appearance of a single office.

 

Although the Illinois Supreme Court in People v. Knippenberg, (1977) 66 Ill.2d 276, 362 N.E.2d 681, found it was error for the State to use privileged communications between the defendant and the defense investigator, there was no breach of the attorney-client privilege in this case. No actual conflict of interest arose regarding the use of the investigator since South's attorney used the investigator to determine whether the co-defendant was going to testify against South and the co-defendant's attorney did not use the investigator for any purpose whatever.

 

Furthermore, the investigator only reported to the public defenders who asked for information and then only that information which they had requested. We conclude that the investigator's limited involvement in this case did not create an appearance of conflict.

 

Who does the investigator report to and are they the investigator for the entire office?

 

Seems to make a difference.

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There seems to be a lot of questions about conflicted attorneys or threads seeking advice on this issue.

 

Previously asked last month:

 

Posted 29 May 2016 - 05:45 PM

RetiredinVA, on 29 May 2016 - 05:06 AM, said:snapback.png

If the court appointed the Public Defender as counsel it would be up to the Public Defender to assign different counsel.

 

Can a whole PD's office be considered "conflicted"?

 

And doucar answered:

 

Posted 30 May 2016 - 09:18 PM

Depending upon the nature of the conflict yes.  If there are co defendants, then the PD office can only represent one of them and outside council will be appointed.  Since the judge ruled it wasn't a conflict (and we have none of the details the judge had to consider) the whole office cannot be considered conflicted.

 

https://boards.answers.findlaw.com/index.php/topic/235598-communication-by-counsel/page-3

 

So, it would seem these answers would also cover staff, investigators and supervisors in a PD's office?

 

In Illinois, can different attorneys, supervisor, office heads, support staff, office help, and investigators be considered conflicted, but the public defenders office and other individual attorneys still continue to represent a defendant?

 

Just wondering...

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