| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Office of Public Advocacy v. Superior Court, First Judicial District (2/14/2025) sp-7749
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
OFFICE OF PUBLIC ADVOCACY, )
) Supreme Court No. S-18741
Applicant, ) Court of Appeals No. A-14132
)
v. ) Superior Court Nos. 1KE-20-00202
) CR, 1KE-19-01040 CR, 1PW-20-
SUPERIOR COURT, FIRST ) 00093 CR, 1PW-20-00134 CR,
JUDICIAL DISTRICT, ) 1PW-20-00109 CR, 1PW-20-00118
) CR, 1PW-20-00074 CR
Respondent. )
) O P I N I O N
)
) No. 7749 - February 14, 2025
Certified Original Application for Relief and Jurisdiction
Transfer from the Court of Appeals of the State of Alaska,
on original application for relief from the Superior Court of
the State of Alaska, First Judicial District, Ketchikan, Daniel
Doty, Judge.
Appearances: Elizabeth D. Friedman, Law Office of
Elizabeth D. Friedman, Prineville, Oregon, for Applicant
Office of Public Advocacy. Thomas P. Amodio, Reeves
Amodio LLC, Anchorage, for Respondent Superior Court,
First Judicial District. Renee McFarland, Deputy Public
Defender, and Terrence Haas, Public Defender, Anchorage,
for Amicus Curiae Public Defender Agency. Tamara E.
DeLucia, Solicitor General, Anchorage, and Treg Taylor,
Attorney General, Juneau, for Amicus Curiae State of
Alaska.
----------------------- Page 2-----------------------
Before: Maassen, Chief Justice, Carney, Borghesan, and
*
Henderson, Justices, and Winfree, Senior Justice. [Pate,
Justice, not participating.]
CARNEY, Justice.
INTRODUCTION
After the unanticipated resignation of an assistant public defender, the
Public Defender Agency proposed a plan to temporarily assign other attorneys to her
cases until a permanent replacement was hired. The superior court rejected the
Agency's plan because no specific attorney would be assigned to the cases or prepare
them for trial. It ordered the Agency to advise affected clients that if they wished to
remain represented by the Agency, they would have to waive their rights to effective
assistance of counsel until an attorney was permanently assigned to their cases, and if
they did not waive their rights, the Agency would withdraw.
The Agency was able to assign specific attorneys for all but one client's
case. It withdrew from that case as ordered by the superior court. The court then
appointed the Office of Public Advocacy (OPA) to represent that client. OPA moved
to withdraw. It argued that its appointment to the case was not authorized under
AS 44.21.410 because the Agency's lack of capacity to take on additional cases was
not a conflict of interest under that statute and that the superior court had exceeded its
authority by rejecting the Agency's proposed plan to cover the affected cases. The
superior court denied the motion to withdraw.
OPA eventually filed an original application for relief with the court of
appeals challenging its appointment. The court of appeals certified the original
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
-2- 7749
----------------------- Page 3-----------------------
application to this court and asked us to accept transfer of jurisdiction , which we
granted.
We issued an order continuing OPA's appointment, stating that a written
opinion explaining the order would follow. We now explain that the superior court did
not err by intervening in the affected cases; lack of capacity can amount to a conflict of
interest; and when the Agency has a conflict due to its lack of capacity to take cases,
AS 44.21.410(a)(4) requires that OPA be assigned.
FACTS AND PROCEEDINGS
A. Background
1. Public Defender Agency
In 2021 the Agency assigned attorneys from its Juneau office to cases in
other Southeast locations, including Ketchikan, Sitka, and Prince of Wales. In late 2022
it became apparent that one of the attorneys was struggling to manage her caseload.
In early November, less than an hour before the scheduled start of a felony
sentencing hearing in Ketchikan, the attorney filed a request to continue the hearing.
The attorney appeared at the hearing by telephone without her client. The court denied
the continuance and ordered the attorney to appear in person the next day for the
sentencing hearing. The hearing was held the following day.
A few days later the attorney was again scheduled to be in Ketchikan for
a felony trial. Trial proceedings were set to begin at 8:30 a.m. Shortly before that time,
the attorney emailed the court that her flight from Juneau was delayed; she subsequently
emailed that it had been cancelled. The court rescheduled trial to begin the next day.
It also indicated it would set a sanctions hearing to address the attorney's failure to
appear and her failure to advise her client about her absence. The court noted that even
if the scheduled flight had arrived on time, the attorney still would not have been able
to be in court at 8:30.
-3- 7749
----------------------- Page 4-----------------------
In addition, the attorney had a hearing scheduled before a different
Ketchikan judge at the same time that the trial was supposed to start. And the attorney
had not advised either judge of the scheduling conflict.
The attorney appeared as ordered in Ketchikan the following day. After
being admonished by the court, the attorney moved to continue the trial, arguing that
the court had damaged her relationship with her client and was unfairly penalizing her
for travel difficulties. The court denied the request for a continuance; trial commenced
and the defendant was convicted.
The same attorney represented another client, Georgina Mathes, in an
unclassified felony case; Mathes's codefendant was represented by an OPA contract
1
attorney. Mathes had been charged in 2020. In October and again in early November
2022 the attorney advised the court that she was ready for trial. But due to the
codefendant's attorney's schedule, trial was continued until December.
At a trial call on November 29, Mathes's attorney informed the court that
she had been assigned to a murder case that was scheduled for a six-week trial beginning
in March in Anchorage. She advised the court that she was therefore unable to do
another trial until after the Anchorage trial concluded and asked that Mathes's case be
continued until May or later.
The codefendant's attorney opposed any continuance but was willing to
sever his case from Mathes's. The prosecution opposed both a continuance and
severance, arguing that either option would be prejudicial to the State and to the victim.
The court denied both the continuance and severance, finding that they were prejudicial
to the State. It also concluded that the time between the end of Mathes's trial and the
beginning of the Anchorage trial would provide Mathes' s attorney sufficient time to
prepare. The court scheduled trial for December 6.
1 OPA is authorized to contract with attorneys to provide representation
when its staff attorneys have conflicts of interest. See AS 44.21.430.
-4- 7749
----------------------- Page 5-----------------------
Mathes's attorney then filed a new motion to continue, arguing that she
would not be able to represent Mathes and her other clients effectively if she were
required to try Mathes 's case before the six-week Anchorage trial. In an affidavit she
stated that her investigation for Mathes's trial was incomplete and that she had 95 cases,
most of which were felonies, including 26 class A felonies, sex felonies, and
unclassified felonies. The Deputy Public Defender also filed an affidavit confirming
that the attorney's caseload was greater than appropriate, given the severity and number
of cases, and that the Anchorage trial was her top priority. The court denied the
continuance.
At the beginning of the scheduled trial on December 6, the Deputy Public
Defender sought a continuance because Mathes's attorney was unavailable due to a
medical emergency. After the court granted the request, the Agency filed a motion to
continue several of the attorney's cases before that court, including Mathes's. It
asserted that the caseloads its attorneys, including Mathes's attorney, carried were far
in excess of recommended maximums and that because of the stress caused by such
caseloads, Mathes's attorney was unable to try any cases before the Anchorage
homicide trial. The court scheduled an evidentiary hearing on the Agency's motion for
early January.
On December 26, the Agency notified the court that Mathes's attorney had
decided to resign. It requested that the court therefore vacate the evidentiary hearing.
The court denied the motion but consolidated the evidentiary hearing with the sanctions
hearing it had scheduled in the earlier case.
2. Evidentiary hearing
The court held a hearing in early January focused on the Agency's plan to
provide representation to clients affected by the attorney's resignation . The Deputy
Public Defender stated that the Agency planned to contract homicide cases to outside
counsel, reassign other serious felonies to assistant public defenders, and "float" the
remaining cases - meaning that those cases would be assigned temporarily to attorneys
-5- 7749
----------------------- Page 6-----------------------
to cover hearings until a replacement could be hired and assigned to the cases on a more
permanent basis. The court recognized that a new Agency attorney was scheduled to
start in Sitka in mid-March and that clients would not remain with their temporary
attorneys for very long before being reassigned to the new attorney.
The court also questioned the accuracy of Mathes's attorney's assertions
that she had an overwhelming caseload. It noted that the Deputy Public Defender had
submitted a list of her cases to the court that reflected she had fewer cases than she had
earlier reported to the court; and of those cases, fewer still were as serious or active as
she had claimed. The court noted that the Deputy Public Defender had provided no
specifics when initially asked to explain the discrepancy between the attorney's
affidavit, which represented that she had 95 cases - a majority of which were reported
to be felonies - and the number presented to the court, which was 73
cases - including 40 felonies - and had speculated the affidavit included probate
cases, might have counted the cases differently, or included cases that had been
reassigned. When questioned, the Deputy Public Defender appeared to suggest that he
relied on the attorney's sworn - but inaccurate - representations. The court found it
"inexcusable" that Mathes's attorney misled the court "on a point so material to the
issues in these cases."
In Mathes's case, the Deputy Public Defender requested a two-month
continuance to determine who would represent Mathes; the codefendant agreed to a
short continuance but opposed a lengthy one. The prosecution said it was "resigned to
the need for a short continuance." The court continued the cases to February. The court
also advised the parties that it still intended to address its duty to ensure all of the
attorney's other clients received effective assistance of counsel.
-6- 7749
----------------------- Page 7-----------------------
3. The court's order
A few days later the court issued an "Order on Cost Bill & Sufficiency of
2
Representation." The court recognized that criminal defendants are entitled to
effective assistance of counsel "at all critical stages of a criminal prosecution," citing
3
Perez v. State . It observed that the Agency was required to provide competent
representation to its clients. The court interpreted "competent" representation under the
Rules of Professional Conduct and the state and federal constitutions to include a duty
to "move a case reasonably quickly." The court concluded that the Agency was
required to provide its clients "representation that is both prepared and prompt"
(emphasis in original). It held that defendants are entitled to more than just "an attorney
show[ing] up for hearings."
The court then found that the Agency was failing to meet those duties. It
found that Mathes's attorney "ha[d] not been meaningfully available to most or all of
her clients since she moved to continue [Mathes's case] in late November." It also
concluded that the Agency's proposed plan to provide representation until a new
attorney arrived did not satisfy the professional conduct rules or Perez . It noted that a
replacement attorney would not start until March and the Agency had limited capacity
to reassign cases in the interim. It concluded that by March, the affected clients would
have been inadequately represented for about four months.
2 It first decided not to sanction the Agency, although it concluded that the
Agency bore some responsibility for the situation that led to the attorney's resignation.
The court found that an Agency supervisor should have at least been aware of the
problems with the flight the attorney booked and directed her to ensure the situation did
not repeat itself. The court noted that this "conflict reveal[ed] the Agency's failures"
because it had not noticed warning signs from the attorney's performance, intervened
by ordering the attorney to take leave, or otherwise addressed the impending problem.
3 521 P.3d 592, 598-99 (Alaska App. 2022) (holding trial court had
"affirmative duty to act" to remedy Agency's failure to assign counsel for defendant for
five months).
-7- 7749
----------------------- Page 8-----------------------
Based on the Agency's lack of "capacity to provide trial-level
representation" to many of the affected clients for so many months, the court found that
the Agency had a conflict of interest under Rule of Professional Conduct 1.7(a)(2)
because of the "significant risk that representation of one or more clients will be limited
4
by the lawyer's responsibilities to another client." It found that the Agency as a whole
had a conflict of interest because the current Agency attorneys who would be assigned
the affected cases would be forced to choose between providing representation to their
current clients and the reassigned clients.
The court recognized that the conflict "presents an odd wrinkle" because
it would last only until the new attorney was able to provide meaningful representation.
It also acknowledged the Deputy Public Defender's concerns that if the Agency
withdrew from the affected cases, those clients would simply sit unrepresented on a
waiting list until the Agency itself could resume taking cases. But the court concluded
that would not be the case because OPA exists in part to step in where the Agency is
unable to represent a client.
The court explained that OPA's authorizing statute, AS 44.21.410(a)(4),
requires it to represent "indigent persons who are entitled to representation [under the
Agency's authorizing statute] and who cannot be represented by the [Agency] because
of a conflict of interests." It highlighted that the statute "does not inquire about the
nature of a conflict, or whether the conflict is temporary." The court therefore
concluded that as long as a conflict of interest existed at the time of withdrawal, OPA
was authorized to provide representation .
4 It noted that the court of appeals previously had commented favorably on
the view that an unsustainable workload could create a conflict under Rule 1.7(a)(2) ,
citing an unpublished order in Donnelly v. State , Nos. A-13597/13598 (Alaska Court of
Appeals Order, Nov. 3, 2021) (unpublished order on motion to permit withdrawal of
counsel).
-8- 7749
----------------------- Page 9-----------------------
Recognizing that withdrawal and reassignment to another agency was a
drastic step, and that OPA might also "be overburdened, or might have its own case-
specific conflicts," the court ordered the Agency to meet with the clients affected by the
attorney's resignation; advise them of the Agency's plans for their continued
representation; and, if the Agency would not be assigning permanent attorneys, advise
them that, if they wished, it would withdraw from representation so that the affected
5
cases could be transferred to OPA. The court further directed that, if the client
preferred to remain with the Agency, the client would have to waive any claim of
ineffective assistance of counsel until a permanent attorney was assigned.
The court also ordered that, after meeting with each of the affected clients,
the Agency was, in each case, to have an attorney file an entry of appearance, a motion
to withdraw, or a notice that the client requested to remain with the Agency. And in
those cases in which clients requested to remain with the Agency, the court ordered that
a representation hearing be held to ensure the clients had been fully advised and had
knowingly, intelligently, and voluntarily "waive[d] their right to the effective assistance
of counsel until a permanent attorney can be assigned to the case."
4. Further proceedings
The prosecution moved for partial reconsideration of the court's order.
While it agreed that judicial intervention was warranted because the Agency had an
irreparable conflict "imped[ing] its ability to effectively represent the named
defendants," the prosecution argued that requiring waiver of the right to effective
assistance of counsel was "constitutionally unworkable" and violated the ethical rules
5 The superior court used the term "permanent" as a "shorthand" to mean
an attorney who, when entering an appearance, intended to represent the client until
trial.
-9- 7749
----------------------- Page 10-----------------------
governing prosecutors and defense attorneys. The prosecution requested that the court
6
appoint counsel through OPA or Alaska Administrative Rule 12(e) instead.
The Agency also responded to the court's order. After stating its general
intent to comply with the court's order and outlining the specific steps it intended to
take, it disputed the court's conclusion that its previously proposed plan constituted
ineffective assistance of counsel. The Agency argued that its proposed plan to provide
representation was constitutionally sufficient because each client would be assigned to
a current Agency attorney and given the lawyer's name and contact information, and
that lawyer would "address issues that concern the client until the case is reassigned to
the new lawyer," including bail, negotiations, discovery, and hearing preparation and
appearances. The Agency asserted that its coverage plan therefore did not "present[]
7
the same concerns highlighted by the Alaska Court of Appeals in Perez ."
The superior court denied the prosecution 's motion for reconsideration.
The court stated that the Agency "ha[d] sorted things out" by providing permanent
attorneys for most of the affected clients and by withdrawing from two others, in which
the court had appointed OPA. The court acknowledged the prosecution 's concern that
its order was not constitutionally permissible but concluded that the concern was
"academic" because the public defender covering the remaining cases advised the court
that he "plan[ned] to work the cases, investigate what needs investigating, file motions
if they need to be filed, hire experts if they need to be hired, [and] negotiate if it is
6 Alaska Admin. R. 12(e) authorizes a court to appoint "counsel, or a
guardian ad litem, or other representative" for an indigent person if the court determines
that the appointment is "required by law or rule" but is not authorized under
AS 18.85.100(a) or AS 44.21.410, which provide for appointment of attorneys for
indigent persons by the Agency or OPA.
7 At issue in Perez was the right to assistance of counsel for an Agency
client who was not assigned an attorney for over five months. Perez, 521 P.3d at 598.
-10- 7749
----------------------- Page 11-----------------------
fruitful to negotiate." The court observed that, "[i]n the end, [that] is all anyone can
really ask for."
B. Office Of Public Advocacy Appointment
On January 23, 2023, the Agency moved to withdraw from Mathes's case,
consistent with her request and the court's order. The court granted the motion and
appointed OPA to represent Mathes on January 24.
On February 8, OPA filed a motion to vacate its appointment. First, it
argued that the Agency did not have a conflict of interest as a matter of fact or as a
matter of law. OPA argued that the court's prior order denying the prosecution's motion
for reconsideration showed that the Agency did not have a conflict of interest because
the court had concluded that the Agency's coverage plan satisfied its effective
representation concerns. OPA also cited the "additional information" supplied by the
Agency during those hearings as establishing that the Agency had capacity to represent
Mathes. OPA also argued that the court had incorrectly interpreted "[f]ailure to meet
the [c]ourt's desired trial schedule" as a conflict, and that even if it were a conflict, it
would not create an Agency-wide conflict of interest. But if it did create an Agency-
wide conflict, OPA argued, then OPA had the same conflict - if not worse, because it
had fewer staff attorneys than the Agency.
8
OPA disagreed with the court's reliance on Perez v. State and Donnelly
9
v. State. Perez, OPA argued, recognized that the Agency is responsible for analyzing
conflicts of interest but did not suggest that a delay in assigning a permanent attorney
violates the right to effective counsel. And Donnelly , it asserted, was inapposite
because the court in that case denied the Agency's motion to withdraw and did not
8 521 P.3d 592 (Alaska App. 2022).
9 Nos. A-13597/13598 at *3 (Alaska App. Order, Nov. 3, 2021)
(unpublished order on motion for withdrawal of counsel).
-11- 7749
----------------------- Page 12-----------------------
appoint OPA. Instead, OPA argued, the court should have looked to Nelson v. State10
for its ineffective assistance of counsel analysis. OPA characterized Nelson as holding
that a criminal defendant cannot raise an ineffective assistance of counsel claim before
a verdict. OPA also noted that we did not extend the conflict in Nelson to the entire
Agency. We limited the imputed conflict to the regional Agency office where the
conflicted attorney worked.11
OPA next claimed that it was statutorily prohibited from representing
Mathes because it was only authorized to take cases when the Agency had an "actual"
or "legal" conflict of interest. It argued that a capacity-based conflict was not an actual
conflict as contemplated by its authorizing statute. OPA also suggested that the superior
court had exceeded its authority by asserting a conflict when the Agency, an executive
branch entity, avowed that there was none. In OPA's view, the court's plan effectively
"ordered the [Agency] to present indigent clients with a choice of counsel." And under
Daniels v. State ,12 OPA argued, a trial court cannot interfere with the administrative
assignment of cases by presenting indigent clients a choice of counsel. Furthermore,
OPA asserted, the superior court's conclusions would encourage Agency attorneys
unable to meet deadlines to claim conflicts of interest or encourage clients to demand a
new attorney when they are unsatisfied with the pace of their pending cases.
OPA also objected to its appointment to represent Mathes in six
misdemeanor cases in addition to her felony case. OPA argued that there was no
conflict in the misdemeanor cases, that its appointment was a clerical error because of
ambiguity of the court's order, and that nothing in the record or the order indicated that
the Agency lacked capacity to handle the misdemeanors. Finally, OPA asked the court
to reappoint the Agency or appoint counsel under Administrative Rule 12(e).
10 440 P.3d 240, 243-44, 247-48 (Alaska 2019).
11 Id. at 246 & n.23.
12 17 P.3d 75 (Alaska App. 2001).
-12- 7749
----------------------- Page 13-----------------------
The court denied OPA's motion on February 21. It first rejected OPA's
argument that the factual basis of its order had changed, observing that OPA had not
presented any evidence to support its argument. It reaffirmed that, based upon the
record, the Agency had a conflict of interest that had not changed since the court's
January 9 order.
The court next noted that OPA previously had refused its offer of an
evidentiary hearing and that its representations on behalf of the Agency were
ambiguous. The court found that it had the authority and duty to intervene to correct a
conflict and ensure Mathes was adequately represented, that Daniels supported its
position, and that Nelson did not limit a court to remedying an ineffective assistance of
counsel claim only after a conviction.
The court reiterated its conclusion that the Agency had a conflict of
interest under the professional rules and the federal and state constitutions. It held that
this conflict arose from the deficit of Agency attorneys to handle its caseload, which
led to almost three years of delays in Mathes's case and an expected further delay of at
least five months. It held therefore that the Agency was permitted to withdraw and
cited court decisions from across the country and formal opinions from both the
American Bar Association and other state bar associations to bolster its conclusion.13
13 The court cited State v. Smith, 681 P.2d 1374 (Ariz. 1984); In re Edward
S., 92 Cal. Rptr. 3d 725, 746-47 (Cal. App. 2009); People v. Roberts, 321 P.3d 581, 589
(Colo. App. 2013); In re Ord. on Prosecution of Crim. Appeals by Tenth Jud. Cir. Pub.
Def., 561 So. 2d 1130 (Fla. 1990); United States v. Hanhardt, 155 F. Supp. 2d 861, 871
(N.D. Ill. 2001); State v. Peart, 621 So. 2d 780 (La. 1993); Carrasquillo v. Hampden
Cnty. Dist. Cts., 142 N.E.3d 28, 49 (Mass. 2020); State ex rel. Mo. Pub. Def. Comm 'n
v. Waters, 370 S.W.3d 592, 607-08 (Mo. 2012) (en banc); United States v. De Castro-
Font, 583 F. Supp. 2d 243, 247-48 (D.P.R. 2008); Lozano v. Cir. Ct. of Sixth Jud. Dist. ,
460 P.3d 721 (Wyo. 2020). For formal opinions the superior court cited to, see ABA
Comm. on Ethics & Pro. Resp., Formal Op. 06-441 (2006); Colo. Bar Ass'n, Formal
Op. 146 (2022); Or. State Bar, Formal Op. No. 2007-178 (2007); S.C. Bar Ethics
-13- 7749
----------------------- Page 14-----------------------
The court concluded that AS 44.21.410(a)(4) required it to appoint OPA.
It explained that because the statute did not exclude "temporary conflicts" and did not
"limit the definition of the term 'interest' to exclude a person's interest in speedy,
prompt, and diligent representation," OPA had to be appointed. The court rejected
OPA's request to appoint Rule 12(e) counsel because Rule 12(e) counsel may be
appointed only if neither the Agency nor OPA were authorized to accept the
appointment. Finally, noting the issue was not moot because Mathes continued to suffer
from the "lack of a timely attorney," the court rejected OPA's argument that the Agency
had resolved the conflict by planning to assign its newly hired attorney to Mathes's
cases six weeks later (emphasis in original).14
Two days later, OPA moved to withdraw once again. It made a variety of
arguments. It first argued that the Public Advocate was counsel of record in Mathes's
case, which created statewide conflicts for OPA and compromised his neutrality as
OPA's director. It argued that the Public Advocate's appointment was therefore
directly adverse to Mathes. And it argued that because the Public Advocate was
responsible for resource allocation for OPA, including contracting with outside
attorneys, his appointment created a conflict with any case assigned to a contract
attorney, including Mathes's codefendant's. Finally, OPA asserted that appointing it
would further delay Mathes's case.
The court denied the motion. It first held that it had not created OPA's
"perceived conflict" because it had "not assign[ed] the OPA director to represent . . .
Advisory Comm, Ethics Advisory Op. 04-12 (2004); State Bar of Wis., Formal Op. E-
84-11 (1998).
14 The court acknowledged that it had not considered Mathes's misdemeanor
cases in its original order but nonetheless continued OPA's appointment, noting that
OPA had not requested a hearing to contest the Agency's basis for withdrawal and had
not presented any evidence that the Agency did not have a conflict.
-14- 7749
----------------------- Page 15-----------------------
Mathes." And it noted that if, as OPA claimed, there were any such perceived problems,
they could be addressed by simply assigning the case to a staff attorney.
The court again concluded that OPA had not established that it or its
contractors had conflicts and that it misconceived the nature of the Agency's conflict.
The court reiterated that the conflict was due to an additional delay of at least five
months "with an indefinite maximum" length before a specific Agency attorney could
represent Mathes. It determined that because that conflict was "driven by the Agency's
lack of capacity," the conflict required the court's intervention to ensure Mathes
received effective assistance. The court clarified that it was not requiring "an attorney
who could immediately try an unclassified felony," but only "someone who is available,
now, to counsel . . . Mathes, even on pretrial matters," and held that OPA's authorizing
statute and the professional rules required OPA to provide that attorney (emphasis in
original).
The court repeated its observation that OPA had not presented any
evidence that it had a conflict or requested an evidentiary hearing to support its claim
that it had the same conflict as the Agency. And the court dismissed OPA's argument
that a lack of capacity in its local offices amounted to an agencywide conflict, pointing
out that OPA is a statewide agency and AS 44.21.410(a)(4) required it to provide
representation when the Agency had a conflict. The court concluded that "OPA has
offered nothing to explain how the whole agency, which continues to enter appearances
and resolve cases in courts around the state even as this order is being written, lacks the
capacity to accept a single client's cases."
Two days later, OPA filed a motion for reconsideration, a motion for
evidentiary hearing, and a motion to stay its appointment pending appellate review and
appoint Rule 12(e) counsel to represent Mathes in the interim. The court denied the
motions for reconsideration and an evidentiary hearing the next day. On March 3, OPA
filed a motion in the court of appeals to stay its appointment and appoint Rule 12(e)
counsel, noting it intended to file a petition for review.
-15- 7749
----------------------- Page 16-----------------------
On March 6, the superior court denied the stay and ordered OPA to file an
entry of appearance in Mathes's case. The court noted that a stay "would cause undue
- and unconstitutional - delays in the appointment of counsel" for Mathes.
C. Original Application For Relief
On March 7, the court of appeals converted OPA's motion for stay of its
appointment in the superior court to an original application for relief under Appellate
Rule 404.15 It certified OPA's original application to us in May under
AS 22.05.015(b).16
The court stated three reasons for its certification. First, "the issues
presented here relate to questions of court administration and the allocation of statewide
budgets - and the answers to these questions will have repercussions far beyond this
individual case" which are "matters that fall directly within the Alaska Supreme Court's
expertise." Second, "the issues presented here raise substantial questions regarding the
ethical obligations of appointed attorneys under the professional rules of responsibility,
the oversight of which is vested in the supreme court ." And finally, "the issues
presented here relate to an on-going crisis involving state agencies and constitutional
representation for indigent defendants that is of sufficient importance to warrant the
supreme court granting a petition for hearing in this case."
We accepted certification and invited the Agency and prosecution to
participate.17 On March 7, 2024, following oral argument, we ordered that OPA
15 Alaska R. App. P. 404 (authorizing original application for relief in
appellate court when "relief is not available from any other court and cannot be obtained
through process of appeal, petition for review, or petition for hearing").
16 AS 22.05.015(b) (authorizing certification of questions "involv[ing] a
significant question of law under the Constitution of the United States or under the
constitution of the state or involv[ing] an issue of substantial public interest that should
be determined by the supreme court").
17 Off. of Pub. Advocacy v. Super. Ct. First Jud. Dist., No. S-18741 (Alaska
Supreme Court Order, June 19, 2023).
-16- 7749
----------------------- Page 17-----------------------
continue to represent Mathes in her cases through resolution in the trial courts. We
promised a written opinion explaining our order; this is our explanation.
STANDARD OF REVIEW
"Questions of statutory interpretation and constitutional issues are
questions of law to which we apply our independent judgment."18 "Whether a conflict
of interest exists under the Alaska Rules of Professional Conduct is an issue of law also
reviewed de novo under the independent judgment standard."19 "In exercising our
independent judgment, we will adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."20
DISCUSSION
A. The Superior Court Did Not Err By Intervening.
"The Alaska Constitution 'vest[s] "legislative power in the legislature;
executive power in the governor; and judicial power" in the courts.' "21 "Derived from
this 'distribution of power among the three branches of government' is the separation
of powers doctrine, which 'limits the authority of each branch to interfere in the powers
that have been delegated to the other branches.' "22 "[T]he separation of powers and its
complementary doctrine of checks and balances are part of the constitutional framework
of this state."23 It not only "protect[s] each branch's functional existence," it also
18 Alaska Pub. Def. Agency v. Super . Ct., 450 P.3d 246, 251 (Alaska 2019).
19 Nelson v. State , 440 P.3d 240, 243-44 (Alaska 2019); see also Burrell v.
Disciplinary Bd. of Alaska Bar Ass'n , 702 P.2d 240, 242-43 (Alaska 1985).
20 Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)
(quoting John v. Baker , 982 P.2d 738, 744 (Alaska 1999)).
21 State v. Recall Dunleavy, 491 P.3d 343, 367 (Alaska 2021) (alteration in
original) (quoting Jones v. State, Dep't of Revenue , 441 P.3d 966, 981 (Alaska 2019)).
22 Id. (quoting Alaska Pub. Int. Rsch. Grp. v. State , 167 P.3d 27, 35 (Alaska
2007)).
23 Id. (quoting Alaska Pub. Int. Rsch. Grp., 167 P.3d at 34-35).
-17- 7749
----------------------- Page 18-----------------------
"preclude[s] the exercise of arbitrary power and . . . safeguard[s] the independence of
each branch of government."24
The Agency, OPA, and the Department of Law are all executive branch
agencies, while the superior court is part of the judicial branch. "Under the separation
of powers doctrine, '[w]hen an act is committed to executive discretion, the exercise of
that discretion within constitutional bounds is not subject to the control or review of the
courts.' "25 OPA argues that the court violated the separation of powers doctrine by
intervening in the Agency's representation of Mathes. Specifically, it contends the
court improperly interfered with the internal workings of an executive agency . It also
argues that the court exceeded its authority by allowing Mathes the "choice" between
Agency and OPA counsel and preventing the return of her cases to the Agency once the
Agency enacted a plan to provide representation to Mathes and other affected clients
until its new attorney arrived .
As arms of the executive branch, the Agency, OPA, and the Department
of Law are entitled to full independence, "subject to judicial authority and review only
in the same manner and to the same extent as retained counsel."26 We agree with other
24 Id. (quoting Alaska Pub. Int. Rsch. Grp. , 167 P.3d at 35).
25 Jackson v. State , 127 P.3d 835, 836 (Alaska App. 2006) (alteration in
original) (quoting Pub. Def. Agency v. Super. Ct., 534 P.2d 947, 950 (Alaska 1975)).
26 AM. BAR ASS'N STANDING COMM. ON LEGAL AID & INDIGENT
DEFENDANTS, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM, 3 (2023),
https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defe
ndants/ls-sclaid-ten-princ-pd-web.pdf; see also, e.g., Kerr v. Parsons , 378 P.3d 1, 12
(N.M. 2016) (Vigil, J., concurring specially) ("In the absence of a constitutional
violation, it is imperative in the administration of justice that we respect the
independence of the Department and the Commission and refrain from interfering with
their internal management decisions."); In re Certification of Conflict in Motions to
Withdraw Filed by Pub. Def. of Tenth Jud. Cir., 636 So. 2d 18, 23 (Fla. 1994) (Harding,
J., concurring) ("Except in the most unusual circumstances, I would leave th[e] decision
-18- 7749
----------------------- Page 19-----------------------
courts that have recognized that a court may not interfere with the management of
public defender services unless "presented with a case that demonstrates that the [public
defender agency's] operations violate the constitution, either because of unlawful
managerial decisions or a lack of resources necessary for providing the effective
representation required under our Constitution and statutes."27
But we also agree with the court of appeals that "[t]rial courts play an
important role in safeguarding [the] constitutional right" of effective assistance."28
Courts have an obligation to ensure the integrity of the justice system29 and to ensure
that defendants receive constitutionally effective assistance of counsel.30 Compliance
[of who should exercise authority and make decisions about whether the public
defender has the resources to perform all the responsibilities required by law] with the
public defender and as a court would not second-guess it.").
27 Kerr, 378 P.3d at 13 (Vigil, J., concurring specially); accord id. at 10
(majority opinion) ("Where there is no violation of right, a court lacks the power to
compel an officer of a coordinate branch of government to perform a duty ."); see also
Lavallee v. Justs. in Hampden Super. Ct. , 812 N.E.2d 815, 910-11 (Mass. 2004)
(requiring prosecution to be dismissed if no attorney appeared for indigent defendant
within 45 days of arraignment); In re Certification of Conflict, 636 So. 2d at 22 (holding
court did not interfere with management of public defender's office by reviewing its
motion to withdraw because its inquiry was limited to existence of factual basis for
motion); id. at 23 (Harding, J., concurring) ("It is only when the decision of a public
defender impacts significantly upon the court that any inquiry should be made.") ;
Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) ("Unless the trial court knows or
reasonably should know that a particular conflict exists, the court need not initiate an
inquiry.").
28 Perez v. State, 521 P.3d 592, 598 (Alaska App. 2022).
29 Alaska Code Jud. Conduct Canon 1; see, e.g., Bunton v. Alaska Airlines,
Inc., 482 P.3d 367, 373-74 (Alaska 2021); Alvarez-Perdomo v. State, 454 P.3d 998,
1008 (Alaska 2019).
30 See, e.g., Powell v. Alabama , 287 U.S. 45, 71 (1932) ("[T]he failure of the
trial court to make an effective appointment of counsel was . . . a denial of due
process."); Moreau v. State , 588 P.2d 275, 283-84 & n.27 (Alaska 1978) (imposing on
-19- 7749
----------------------- Page 20-----------------------
with the rules of professional conduct is a basic component of effective assistance .31
Courts must inquire when an apparent conflict of interest exists to ensure that the
defendant receives conflict-free representation.32 To ensure conflict-free
representation, courts may disqualify an attorney or condition continued representation
upon a defendant's waiver of a conflict that is waivable under the ethics rules.33
We agree with the superior court that effective representation requires
more than simply "show[ing] up for hearings." When the court determined the Agency
trial court obligation to advise defendants of "potential dangers of representation by
counsel with a conflict of interest" and obtain voluntary waiver of constitutional
protections for such representation to proceed (quoting State v. Olsen, 258 N.W.2d 898,
906 (Minn. 1977))); Risher v. State , 523 P.2d 421, 423 (Alaska 1974) ("The mere fact
that counsel represents an accused does not assure this constitutionally-guaranteed
assistance. The assistance must be 'effective' to be of any value." (quoting McCracken
v. State, 521 P.2d 499, 508 (Alaska 1974))).
31 See Wood v. Georgia, 450 U.S. 261, 271 (1981).
32 See, e.g., id. at 272 (noting that while it was unclear if "actual conflict of
interest was present," record demonstrated " [t]he possibility of a conflict was
sufficiently apparent . . . to impose upon the court a duty to inquire further" (emphasis
in original)); Perez, 521 P.3d at 598 ("Trial courts play an important role in
safeguarding th[e] constitutional right [to the assistance of counsel in all critical stages
of a criminal prosecution]."); State v. Peart, 621 So. 2d 780, 787 (La. 1993) ("If the
trial court has sufficient information before trial, the judge can most efficiently inquire
into any inadequacy [of representation] and attempt to remedy it."); cf. Cuyler, 446 U.S.
at 347 ("Unless the trial court knows or reasonably should know that a particular
conflict exists, the court need not initiate an inquiry.").
33 See Wheat v. United States, 486 U.S. 153, 159-60 (1988) (requiring trial
court to take appropriate measures to protect criminal defendants from attorney 's
conflict of interest); Daniels v. State , 17 P.3d 75, 82 (Alaska App. 2001) ("[A]
defendant's right to waive their attorney 's conflict of interest is not absolute; '[the]
courts have an independent interest in ensuring that criminal trials are conducted within
the ethical standards of the profession and that legal proceedings appear fair to all who
observe them.' " (alteration in original) (quoting United States v. Locascio, 6 F.3d 924,
931 (2d Cir. 1993))); Perez, 521 P.3d at 599 (observing trial court failed to fulfill duty
to safeguard defendant's constitutional right to counsel) .
-20- 7749
----------------------- Page 21-----------------------
was failing to provide representation consistent with its ethical and constitutional
obligations, it instructed the Agency to take certain steps to remedy the situation.
Concluding the Agency had a conflict of interest, the court ordered the Agency to
withdraw and appointed OPA. Because the court had a duty to ensure Mathes's rights
were protected, it did not violate the separation of powers doctrine by doing so.
In Daniels v. State the court of appeals determined the trial court abused
its discretion by disqualifying a public defender because he had represented a witness
ten years earlier in an unrelated matter.34 The defense strategy involved suggesting that
the witness had committed the crime being prosecuted.35 The client waived any conflict
of interest due to the past representation, and after consulting with independent counsel,
the witness did not perceive any conflict, but the court granted the prosecution's motion
requiring the public defender to withdraw.36 The court of appeals noted that although
indigent defendants do not have the right to demand a particular attorney, "courts do
not disqualify an attorney on the grounds of conflict of interest unless the former client
moves for disqualification."37 Because the conflict was waivable and neither client nor
their attorneys claimed that a conflict of interest existed, the court of appeals reversed
the trial court's withdrawal order.38
OPA's claim that the superior court gave Mathes a "choice" of counsel
mischaracterizes the court's order. The court ordered the Agency to advise affected
clients that they would have to waive any claim of ineffective assistance of counsel until
a permanent attorney was assigned to their case if they wished to remain represented by
34 Daniels , 17 P.3d at 78, 86-87.
35 Id.
36 Id. at 78-79.
37 Id. at 82 (quoting United States v. Rogers, 9 F.3d 1025, 1031 (2d Cir.
1993)).
38 Id. at 79, 87.
-21- 7749
----------------------- Page 22-----------------------
the Agency. The court ordered the Agency to withdraw from any case in which the
client did not waive the conflict. Agency clients were not given a choice of preferred
counsel as OPA suggests.
Nor did the superior court "prevent [] transfer" back to the Agency as OPA
alleges. The Agency withdrew from Mathes's cases, as ordered, because she did not
waive the conflict of interest. OPA did not give the court any basis to transfer Mathes's
cases back to the Agency.
OPA challenges the court's conclusions that the affected clients had been
inadequately represented for months and that the Agency's "floating" approach would
result in further inadequate representation. But as the court explained in its order
denying OPA's motion to vacate its appointment, neither OPA nor the Agency
presented any evidence to suggest that representing Mathes was no longer beyond the
Agency's capacity. Although the court was satisfied by the temporary attorney's stated
intention to actively represent the clients in the four cases to which he was assigned,
neither he nor the Agency gave the court similar assurances in Mathes's case. The
record before the court made clear that Mathes's former attorney had not actively
worked her case for at least two months before her resignation and the Agency could
not assign an attorney to actively work on her case for another three months. Such
delay was "excessive" when Mathes had been charged three years prior and "was
pushing to vindicate her right to a speedy trial."
OPA argues that the superior court exceeded its authority by requiring
defendants to waive their rights to claim ineffective assistance of counsel. The superior
court ordered that the clients "waive their right to the effective assistance of counsel" if
they wished to remain represented by the Agency, rather than specifying the more usual
waiver of speedy trial. The court determined that the affected clients would not have
meaningful representation for nearly five months and that the delay would conflict with
-22- 7749
----------------------- Page 23-----------------------
their speedy trial rights under the state and federal constitutions.39 It also concluded
that the delay was likely to be far beyond the 120-day trial deadline in Alaska Criminal
Rule 45.40 But criminal defendants can and often do waive their speedy trial rights.41
The delay resulting from the Agency's plan thus required clients waive their speedy
trial rights if they wanted to remain with the Agency until a new attorney was hired .
The superior court's somewhat inartful language does not amount to a reversible error.
OPA also argues that the superior court's interpretation of Perez v. State
was flawed and Perez should not be extended to allow courts to intrude into the
management decisions of executive agencies.42 It argues that Perez "presented a
different situation" because it involved a client to whom no attorney was assigned for
five months, while the clients here had individual counsel at all times.43 From this OPA
argues that the superior court erred by concluding that Perez required an attorney to be
"actually" assigned to the case.
39 U.S. Const. amend. VI; Alaska Const. art. I, § 11.
40 Alaska R. Crim. P. 45(b) ("A defendant charged with a felony, a
misdemeanor, or a violation shall be tried within 120 days.").
41 See, e.g., Glasgow v. State, 469 P.2d 682, 686-87 (Alaska 1970)
(concluding court cannot infer generally waiver of constitutional speedy trial right from
mere silence but defendant may "knowingly and intelligently waive [] such
constitutional rights"); Rutherford v. State , 486 P.2d 946, 950 (Alaska 1971) (same);
Conway v. State, 707 P.2d 930, 934 (Alaska App. 1985) (noting criminal defendant may
"waive or under certain circumstances forfeit the right to assert a speedy trial
violation"); James v. State , 567 P.2d 298, 300 (Alaska 1977) (concluding defendant
forfeited right to complain of speedy trial rule violation by failing to complain before
voir dire); Trudeau v. State, 714 P.2d 362, 365-66 (Alaska App. 1986) (concluding
superior court did not err by finding defendant forfeited right to complain of speedy
trial violation by waiting until after jury selection); Alaska Pub. Def. Agency v. Super.
Ct., 530 P.3d 604, 609-10 (Alaska App. 2023) (holding continuance under Rule 45
requires consent of defendant).
42 Perez v. State, 521 P.3d 592 (Alaska App. 2022).
43 See id. at 595-97.
-23- 7749
----------------------- Page 24-----------------------
Contrary to OPA's claim, however, Perez did not hold only that assigning
an individual attorney to a defendant was required. In Perez the defendant had "no
attorney keeping track of his case between pretrial hearings, no attorney communicating
with him outside these hearings, no attorney reviewing the discovery and discussing it
with him, and no attorney assisting him with other pretrial matters" for five months.44
Under these circumstances, the court of appeals held that the superior court "had an
affirmative duty to act [to safeguard the defendant's constitutional right to counsel]
when it became clear that [he] had no attorney assigned" and that the "conflict issues
. . . were not being timely resolved."45
In both Perez and Mathes's case, the court was concerned that a defendant
was not receiving effective representation. When it is apparent to the court that a
defendant is not receiving effective representation, the court has an affirmative duty to
intervene.46
B. The Superior Court Did Not Err By Appointing OPA.
OPA disagrees with the superior court's conclusion that a capacity-based
conflict is a conflict of interest under the enabling statute authorizing its appointment.47
OPA argues that the legislative history of AS 44.21.410(a)(4) and 30 years of practice
show that it was created to represent indigent defendants when the Agency has an
"actual" conflict of interest, such as in cases of codefendant representation, not as an
"overflow" agency to fill in when the Agency is "over capacity." It argues that the
superior court therefore erred by appointing it when it found that Mathes could not be
represented by the Agency due to its lack of capacity.
44 Id. at 598.
45 Id.
46 See id.
47 See AS 44.21.410(a)(4) (requiring OPA to represent indigent persons that
qualify for Agency representation when Agency has conflict of interest).
-24- 7749
----------------------- Page 25-----------------------
1. Lack of capacity can be a disqualifying conflict of interest.
Rule of Professional Conduct 1.7(a) provides that a lawyer "shall not
represent a client if the representation involves a concurrent conflict of interest."
Subsection (a)(2) of the rule goes on to define a concurrent conflict of interest as arising
when there is "a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client."48
Rule 1.1(a) requires attorneys to provide "competent" representation to
their clients. Competent representation entails the "thoroughness and preparation
reasonably necessary for the representation."49 And under Rules 1.3 and 3.2, attorneys
have a duty to "act with reasonable diligence and promptness in representing a client"50
and to "make reasonable efforts to expedite litigation consistent with" a client's
interests.51 Commentary to Rule 1.3 specifies that "[a] lawyer's work-load must be
controlled so that each matter can be handled competently."
A situation in which an attorney is overloaded with cases compromises
the attorney's ability to comply with relevant rules of professional conduct and may
deny a defendant effective assistance of counsel.52 When an attorney is assigned too
many cases, the risk increases that the attorney's ability to represent any one client may
be limited by responsibilities to others. As a caseload increases, the attorney's ability
to bring to each case the thoroughness and preparation necessary to provide competent
48 Alaska R. Prof. Conduct 1.7(a)(2).
49 Alaska R. Prof. Conduct 1.1(a).
50 Alaska R. Prof. Conduct 1.3.
51 Alaska R. Prof. Conduct 3.2.
52 See Carrasquillo v. Hampden Cnty. Dist. Cts., 142 N.E.3d 28, 48-49
(Mass. 2020) (concluding same based on Massachusetts's Professional Conduct Rules,
which are worded nearly identically) .
-25- 7749
----------------------- Page 26-----------------------
representation may diminish. And as the number of assigned cases increases, the
attorney's ability to promptly and diligently expedite any one case may decrease.
Courts from other jurisdictions have also concluded that a shortage of
public defenders and the resulting excessive caseloads can amount to a conflict of
interest because the attorneys must choose between the rights of their clients.53 Rule
1.7(a)(2)'s plain language, when read in conjunction with the other professional rules'
requirements, makes clear that a public defender agency's inability to provide effective
assistance because of a lack of attorneys or hours can amount to a conflict of interest.
OPA asserts that an evidentiary hearing should be required when the
Agency alleges it is "over capacity" and asks that we establish such a procedure. It
argues that because the superior court did not hold an evidentiary hearing, we should
vacate its order. But OPA declined the court's invitation to have an evidentiary
53 See, e.g., In re Edward S., 92 Cal. Rptr. 3d 725, 746-47 (Cal. App. 2009)
("[A] conflict of interest is inevitably created when a public defender is compelled by
his or her excessive caseload to choose between the rights of the various indigent
defendants he or she is representing."); People v. Roberts, 321 P.3d 581, 589 (Colo.
App. 2013) (same); In re Ord. on Prosecution of Crim. Appeals by Tenth Jud. Cir. Pub.
Def., 561 So. 2d 1130, 1135 (Fla. 1990) ("When excessive caseload forces the public
defender to choose between the rights of the various indigent criminal defendants he
represents, a conflict of interest is inevitably created."); Carrasquillo, 142 N.E.3d at
48-49 ("Requiring defense attorneys to take on more clients than they can reasonably
handle may impede their ability to meet [the] obligation" to "act with reasonable
diligence and promptness in representing a client" and "may create concurrent conflicts
of interest."); United States ex rel. Green v. Washington, 917 F. Supp. 1238, 1275 (N.D.
Ill. 1996) ("When an agency such as [the Office of the State Appellate Defender] is
appointed to more cases than it can timely handle, . . . conflicts of interest are
necessarily created as a surfeit of clients compete for the scarce resources of available
attorney time and attention."); State ex rel. Mo. Pub. Def. Comm'n v. Waters , 370
S.W.3d 592, 608 (Mo. 2012) (en banc) (same).
-26- 7749
----------------------- Page 27-----------------------
hearing54 and the superior court made adequate findings . Because the court's process
and factual findings are sufficient for our review, we see no need to require more.
2. Alaska Statute 44.21.410(a)(4) requires OPA to take a case if
the Agency has a conflict of interest due to a capacity conflict.
Alaska Statute 44.21.410(a)(4) requires OPA to provide legal
representation "in cases involving indigent persons who are entitled to representation
[by the Agency] and who cannot be represented by the public defender agency because
of a conflict of interests." The statute does not define "conflict of interests." The
superior court reasoned that "[t]he existence of a conflict at the time of withdrawal is
enough to justify an OPA appointment" because "[t]he statute does not inquire about
the nature of a conflict, or whether the conflict is temporary."
OPA contends that a conflict of interest due to lack of capacity is not the
sort of conflict contemplated by the legislature when it enacted AS 44.21.410(a)(4). It
argues that a "conflict of interest" under AS 44.21.410(a)(4) "has always meant an
actual/legal conflict arising under the Professional Conduct Rules - most often Rule
1.7."
OPA seems to suggest that the "actual" conflicts of interest in
AS 44.21.410(a)(4) are limited to conflicts presenting adverse representation "such as
multi-defendant cases." It points to legislative history and "the history of the agencies'
transactions" to support its interpretation. But the plain language of the statute says
nothing about the type of conflict that authorizes OPA's appointment. And OPA falls
well short of overcoming its heavy burden to show that the legislature intended to give
the term "conflict of interests" OPA's preferred meaning .
54 OPA later moved for an evidentiary hearing along with its motion for
reconsideration, which the court denied because new evidence cannot be introduced in
connection with a motion to reconsider.
-27- 7749
----------------------- Page 28-----------------------
"In the absence of a [statutory] definition, we construe statutory terms
according to their common meaning[;] [d]ictionaries provide a useful starting point for
this exercise."55 "The plainer the statutory language is, the more convincing the
evidence of contrary legislative purpose or intent must be."56 "If the language is 'clear
and unambiguous,' then 'the party asserting a different meaning bears a
correspondingly heavy burden of demonstrating contrary legislative intent.' "57
The plain language of the statute does not exclude conflicts based on lack
of capacity. Black's Law Dictionary defines a "conflict of interest" as "[a] real or
seeming incompatibility between two interests that one possesses or is obligated to
serve" or "[a] real or seeming incompatibility between the interests of two of a lawyer's
clients, such that the lawyer is disqualified from representing both clients if the dual
representation adversely affects either client or if the clients do not consent."58
Merriam-Webster defines the term as "a conflict between competing duties ."59 And the
American Heritage Dictionary defines it as "[a] conflict between a person's private
interests and public obligations."60 The Restatement (Third) of the Law Governing
Lawyers defines a conflict of interest as a circumstance in which "there is a substantial
risk that the lawyer's representation of the client would be materially and adversely
55 State, Dep't of Fam. & Cmty. Servs., Off. of Child.'s Servs. v. Karlie T.,
538 P.3d 723, 730 (Alaska 2023) (alterations in original) (quoting State v. Recall
Dunleavy, 491 P.3d 343, 359 (Alaska 2021)).
56 Id. (quoting State, Dep 't of Com., Cmty. & Econ. Dev., Div. of Ins. v.
Alyeska Pipeline Serv. Co. , 262 P.3d 593, 597 (Alaska 2011)).
57 Guerin v. State, 537 P.3d 770, 778 (Alaska 2023) (quoting State v.
Planned Parenthood of the Great Nw. , 436 P.3d 984, 992 (Alaska 2019)).
58 Conflict of Interest, BLACK 'S LAW DICTIONARY (12th ed. 2024) (citing
MODEL RULES OF PRO. CONDUCT r. 1.7(a) (AM. BAR ASS'N 2013)).
59 Conflict of Interest, MERRIAM-WEBSTER 'S DICTIONARY (2024).
60 Conflict of Interest, AMERICAN HERITAGE DICTIONARY (5th ed. 2016).
-28- 7749
----------------------- Page 29-----------------------
affected by the lawyer's own interests or by the lawyer's duties to another current client,
a former client, or a third person."61 It does not distinguish between particular kinds of
conflicts.62
Other authorities from the time AS 44.21.410 was enacted are in
agreement. The statute was passed in 1984.63 Just one year earlier, the American Bar
Association (ABA) adopted the Model Rules of Professional Conduct.64 Those rules
identified impermissible conflicts of interest as situations in which representation of a
client "will be directly adverse to another client" or "may be materially limited by the
lawyer's responsibilities to another client."65 The 1990 edition of Black's Law
Dictionary incorporated the ABA's standard into its definition of "conflict of interest,"
explaining that "[t]he Code of Professional Responsibility and Model Rules of
Professional Conduct set forth standards for actual or potential conflicts of interest
between attorney and client."66 None of these definitions suggests that the term refers
only to a subsection of all conflicts of interest. Given that the plain language of
AS 44.21.410(a)(4) does not exclude particular types of conflicts of interest, OPA bears
a "heavy burden" to demonstrate the legislature intended such an exclusion.67
OPA does not satisfy that burden. OPA was established in the wake of
lawsuits challenging the court system's former practice of appointing private attorneys
61 RESTATEMENT (THIRD) OF THE L. GOVERNING LAWYERS § 121 (AM. L.
INST . 2000).
62 See id.
63 Ch. 55, § 1, SLA 1984.
64 Model Rules of Professional Conduct, 69 A.B.A.J. 1592, 1671 (1983).
65 Id. at 1678.
66 Conflict of Interest, BLACK 'S LAW DICTIONARY (6th ed. 1990).
67 See Guerin v. State, 537 P.3d 770, 778 (Alaska 2023).
-29- 7749
----------------------- Page 30-----------------------
to represent indigent defendants when the Agency had a conflict of interest.68 The court
system was already contracting with private counsel at great cost and faced even greater
expenses if the lawsuits were successful.69 OPA was proposed as cost-savings solution
"to handle many cases where the public defender had a conflict."70 It could "pass cases
back and forth and avoid conflict situations."71 The governor's transmittal message to
the legislature declared that OPA would be "empowered to provide public guardian and
guardian ad litem services as well as legal representation to indigent persons, when
authorized by existing statutes."72 He hailed the proposed agency as "permit[ting]
efficient sharing of resources, including space, personnel, clerical support, and other
administrative costs."73
This legislative history only bolsters our conclusion that "a conflict of
interests" in AS 44.21.410(a)(4) means all conflicts of interests and that OPA has not
carried its burden to show that it means only certain conflicts. Legislative deliberations
and related testimony mainly discussed the fiscal benefits of creating an agency to
handle cases where the Agency had a conflict, not what constituted a conflict.74 The
68 See Wood v. Super. Ct., 690 P.2d 1225 (Alaska 1984); DeLisio v. Alaska
Super. Ct., 740 P.2d 437 (Alaska 1987).
69 Minutes, S. Fin. Comm. Hearing on S.B. 312, 13th Leg., 2d Sess. (Feb. 2,
1984) (testimony of Arthur H. Snowden, Admin. Dir., Alaska Ct. Sys.).
70 Minutes, S. Fin. Comm. Hearing on S.B. 312, 13th Leg., 2d Sess. (Apr.
27, 1984) (statement of Sen. Albert Adams, Chair).
71 Minutes, S. Fin. Comm. Hearing on S.B. 312, 13th Leg., 2d Sess. (Feb. 2,
1984) (testimony of Arthur H. Snowden, Admin. Dir., Alaska Ct. Sys.).
72 1983 S. Journal 1251.
73 Id.
74 See Minutes, S. Fin. Comm. Hearing on S.B. 312, 13th Leg., 2d Sess.
(Apr. 27, 1984) (comments of Rep. Terry Martin); Minutes, House Jud. Comm. Hearing
on S.B. 312, 13th Leg., 2d Sess. (Mar. 7, 1984) (testimony of Karla Forsythe, Gen.
Counsel, Alaska Ct. Sys.).
-30- 7749
----------------------- Page 31-----------------------
governor's transmittal message similarly focused on the cost savings and more efficient
provision of representation for indigent criminal defendants that would result from
OPA's creation without mention of the type of conflict that would lead to OPA's
appointment.75
OPA also argues that it and the Agency have historically understood
"conflicts" to only mean "actual conflicts" involving their clients, despite having no
memorandum documenting their understanding. OPA invites us to adopt its limited
definition of "conflict of interests" based on the agencies' practice. But such a practice
cannot overcome the statute's plain language and legislative history, which do not
reveal any legislative intent to give the phrase "conflict of interests" a meaning that
would exclude conflicts due to capacity.
Alaska Statute 44.21.410(a)(4)'s plain language requires OPA to provide
legal representation to indigent persons who cannot be represented by the Agency due
to a conflict of interests. Conflicts of interests include those resulting from the
Agency's lack of capacity to provide effective representation.76
CONCLUSION
We AFFIRM the superior court's order appointing OPA to represent
Mathes.
75 See 1983 S. Journal 1250-51. The message only mentioned conflicts of
interest once, describing Alaska's then-current practice of appointing private attorneys.
Id. at 1250 ("The court system, by statute . . . appoints and compensates attorneys who
represent indigent persons when the public defender agency cannot provide an attorney
because of a conflict of interests .").
76 OPA also argues the court should have appointed counsel under Alaska
Administrative Rule 12(e) because it found the Agency had a capacity conflict. But
because the superior court did not err by intervening and appointing OPA to represent
Mathes under AS 44.21.410(a)(4), Rule 12(e) does not apply.
-31- 7749
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
