News & Events - Putting GPDSC in Executive Branch Created a Legal Quandary
Putting GPDSC in Executive Branch Created a Legal Quandary
By Michael A. Caplan
In 2008, the General Assembly and Gov. Sonny Perdue decided to remove the Georgia Public Defender Standards Council from the judicial branch of Georgia government and, instead, place the indigent defense agency within the executive branch. R. Robin McDonald's July 8 article, "Judge, PD's affair sparks debate," addressing concerns over the validity of 200 convictions obtained in the Griffin Circuit during an extended episode of misconduct by a Superior Court judge and an assistant public defender, exposes the fundamental flaw in this policy decision.
The Daily Report reports that the director of GPDSC is seeking the legal advice of the attorney general concerning the validity of those convictions. The same attorney general has a constitutional duty to advocate for the propriety of the very same convictions in any pending or forthcoming habeas proceedings.
How can the constitutional officer who has the public duty to advocate for the validity of these convictions simultaneously give professionally independent advice to the agency charged with defending those very same cases?
The attorney general, by constitutional mandate, is "the legal advisor of the executive department," and, by statute, has the "complete and exclusive authority and jurisdiction in all matters of law relative to the executive branch." According to a 2009 AG opinion, only the AG's office—and no other—can give legal advice to the GPDSC because the GPDSC is now an executive branch agency.
But the attorney general, like every other lawyer, is governed by Rule 1.7 of the Georgia Rules of Professional Conduct and its requirement of undivided loyalty between lawyer and client. If a lawyer "cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities," the lawyer's representation must end.
The placement of GPDSC in the executive branch puts both the director of the GPDSC and the Law Department in an impossible predicament. Only a statutory amendment that restores the GPDSC to its proper place within the judicial branch will cure this constitutional and ethical quandary.