Opinion
2021-CT-01109-SCT
05-14-2024
TYKEVIOUS DURR A/K/A TYKEVIOUS TYRONE DURR Appellant v. STATE OF MISSISSIPPI Appellee
ORDER
ROBERT P. CHAMBERLIN, JUSTICE
This matter is before the Court, en banc, on the petition for writ of certiorari filed by Tykevious Durr. The petition was granted by order of this Court on November 15, 2023. Pursuant to Mississippi Rule of Appellate Procedure 17(f) and upon further consideration, the Court finds that there is no need for further review of this matter and that the writ of certiorari should be dismissed.
IT IS THEREFORE ORDERED that the writ of certiorari is hereby dismissed on the Court's own motion.
SO ORDERED.
AGREE:
RANDOLPH, CJ.,MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ.
DISAGREE:
KITCHENS AND KING, P.JJ., COLEMAN AND ISHEE, JJ.
KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, P.J., AND ISHEE, J.
KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶[1. This case presents an important matter of first impression that should be adjudicated by the full Court on direct appeal rather than preserved for consideration by a panel on a petition for post-conviction review. At trial for capital murder and additional charges, Dun-was represented by an attorney from the Forrest County Public Defender's Office and an additional attorney appointed under Mississippi Code Section 25-32-13(2) (Rev. 2018). Durr's coconspirators, Tomaz Hinton and Andre Snell, pled guilty to lesser charges and testified against Durr at trial. They also were represented by attorneys from the Forrest County Public Defender's Office. Durr and Hinton each argued that the other one fired the fatal shot.
¶2. With the interests of the defendant and the prosecution witnesses diametrically adverse, a conflict concern arises from the joint representation by attorneys from the same group of attorneys. See Miss. R. Pro. Conduct 1.7. If the joint representation were by attorneys from the same law firm, imputed disqualification under Mississippi Rule of Professional Conduct 1.10(a) would operate to preclude representation absent a knowing waiver of the conflict by the client. Mississippi has yet to address directly what approach our jurisdiction will take when faced with this scenario in the context of a public defenders' office. This matter is of high importance given that "[w]hen the accused is represented by an attorney with an actual conflict of interest, the accused has received ineffective assistance of counsel as a matter of law, and 'reversal is required irrespective of a showing of prejudice[.]"Kiker v. State, 55 So.3d 1060,1066 (Miss. 2011) (quoting Armstrong v. State, 573 So.2d 1329, 1335 (Miss. 1990)); see also Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980).
¶3. Jurisdictions in the United States take different approaches on whether the imputed disqualification that applies to law firms applies to public defenders' offices. Some jurisdictions follow a per se rule "that attorneys in a public defender's office are to be treated as members of a law firm for the purposes of raising claims of ineffective assistance of counsel." Ryan v. Thomas, 409 S.E.2d 507,509 (Ga. 1991); see also Ward v. State, 753 So.2d 705 (Fla. Dist. Ct. App. 2000). Under this approach, two attorneys in the same public defender's office each are "bound by the duties that the other owe[s] to his clients." Williams v. Warden, 586 A.2d 582, 589 n.5 (Conn. 1991). "[I]t would be unethical to shift [one defendant's] guilt to [the second defendant] while [the first defendant] was represented by the Public Defender's Office, because the Public Defender's Office also had a duty of loyalty to [the second defendant])." Rodriguez v. State, 628 P.2d 950,953-54 (Ariz. 1981) (holding that knowledge gained by any member of the public defender's office would be attributed to the other members and that the attorneys' duties conflicted regarding adverse codefendants); State v. Smith, 621 P.2d 697,698-99 (Utah 1980); Allen v. Dist. Ct. in &for Tenth Jud. Dist., 519 P.2d 351, 353 (Colo. 1974); Bouie v. State, 559 So.2d 1113, 1115 (Fla. 1990) ("Different attorneys in the same public defender's office cannot represent defendants with conflicting interests." citing Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976)).
"Lawyers [in a government office] who practice their profession side-by-side, literally and figuratively, are subject to subtle influence that may well affect their professional judgment and loyalty to their clients, even though they are not faced with the more easily recognized economic conflict of interest." People v. Robinson, 402 N.E.2d 157, 161 (111. 1979) (internal quotation marks omitted) (quoting Borden v. Borden, 277 A.2d 89, 91 (D.C. 1971)).
¶4. However, a substantial number of jurisdictions follow a case-by-case approach. This approach recognizes that public defenders' offices lack many of the conflicts that are inherent in a private law firm. Salaried members of a public defender's office lack the financial motivations members of a private firm are likely to have. See State v. Cook, 171 P.3d 1282,1291 (Idaho 2007) ("concurrent representation by public defenders generally will create no incentive (economic or otherwise) for diminished advocacy"). Further, the duty of an individual public defender is to his client, not to a firm as well. Id. (citing State v. Bell, 447 A.2d 525, 528 (N.J. 1982)); Asch v. State, 62 P.3d 945,953 (Wyo. 2003) ("The lawyers provide legal services, not to the public defender office, but to individual defendants.") (quoting Restatement (Third) of the Law Governing Lawyers § 203(2) cmt. d(iv)).
¶5. Under this approach, the structure of a given public defender's office is highly relevant when conducting an inquiry into the protection of confidential information and communications. In fact, "vicarious or imputed disqualification serves primarily to preserve a client's confidentiality." Aldridge v. State, 583 So.2d 203,205 (Miss. 1991) (citing Miss. R. Pro. Conduct 1.10 cmt.). State and federal jurisdictions analyzing this concern routinely cite the Restatement of Law Governing Lawyers discussing the imputed conflict concerns related to public defender's offices:
¶6. Where defenders in the same office discuss cases and have access to each other's files, § 203(3) imputes their conflicts to each other. In the absence of such access, however, public defenders who are subject to a common supervisory structure within an organization ordinarily should be treated as independent.... Thus, while individual defendants should be represented by separate members of the defender's office, the representation of each defendant should not be imputed to other lawyers in an office where effective measures prevent communication of confidential client information between lawyers employed on behalf of individual defendants.
Restatement (Third) of the Law Governing Lawyers, § 203 cmt. d(iv) (Am. Law Inst. Proposed Final Draft No. 1 Mar. 29, 1996). Mississippi has no criminal rule provision addressing joint representation. Some jurisdictions have enacted rules incorporating components of Federal Rule of Criminal Procedure 44(c)(2), which requires that "[t]he court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel."
For example, Wyoming's criminal rules provide:
(c) Joint representation. Whenever two or more defendants have been charged with offenses arising from the same or related transactions and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall order separate representation.Wyo. R. Crim. P. 44(c).
¶7. We should not continue to leave the Mississippi bench and bar in the dark on how to navigate the scenario presented in this case. This direct appeal is the right opportunity for the full Court to announce the approach our jurisdiction will take so that attorneys and judges can commence criminal trials with full confidence that all necessary conflict inquires have been conducted, resolved, and preserved in the record. If the current record before us on direct appeal is insufficient for us to determine whether an actual conflict was present in Durr's case, the Court could remand for limited proceedings consistent with the announced standards.
Resolution of a potential or actual conflict could include a knowing waiver by the client or a finding that appointment of outside counsel is proper. See Miss. Code Ann. § 25-32-13 (Rev. 2018).
Multiple other jurisdictions have found it appropriate to address this issue on direct appeal. See State v. Ibarra, 829 N.W.2d 190 (Iowa Ct. App. 2013); Perkins v. State, 487 S.E.2d 365 (Ga.Ct.App. 1997); State v. Mark, 231 P.3d 478 (Haw. 2010); State v. Cook, 171 P.3d 1282 (Idaho Ct. App. 2007).
¶8. For these reasons, I disagree with the order dismissing the grant of certiorari review of Durr's ineffective assistance of counsel claim.
KING, P.J., AND ISHEE, J., JOIN THIS SEPARATE WRITTEN STATEMENT.