Report Titled: Success Is a Plea Bargain, a Win Is a Lesser Charge*

Conclusions 1

• CL1
  The separation of a public defenders office into physically separate branches is legally permissible but raises ethical issues that can be resolved with adequate safeguards. This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only, it is not binding on the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar. [1] This opinion does not address whether internal screening procedures can be used in the private sector to avoid ethical conflicts of interest. Some cases have discussed ethical screens in civil situations. See, e.g., People ex ref. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1151-52 [86 Cal.Rptr.2d 816]; In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990; San Gabriel Basin v. Aerojet-General (C.D. Cal. 2000) 105 F. Supp.2d 1095; Henriksen v. Great American Savings and Loan (1992) 11 Cal. App.4th 109 [14 Cal. Rptr.2d 184]; Rosenfeld Construction Co. v. Superior Court (1991) 235 Cal.App.3d 566, 577 [286 Cal.Rprt. 609]; Dill v. Superior Court (1984) 158 Cal.App.3d 301 [205 Cal. Rptr. 671]. See also Cho v. Superior Court (1995) 39 Cal. App. 4th 113, 125-126 [45 Cal. Rptr. 2d 863], and California State Bar Formal Opinion Number 1993-128 [discussing ethical screening of former government attorneys when In private practice], [2] The screening procedures outlined in People v. Christian, supra, 41 Cal.App.4th 986 comport with those set forth in Henriksen v. Great American 3 of 4 5/11/2011 12:46 PM FORMAL OPINION NO. 2002-158 http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=VPpnWCRhfNw... Savings & Loan, supra, 11 Cal.App.4th at 116, fn. 6. The opinion in Henriksen observes in footnoted dicta: The typical elements of an ethical wall are: physical, geographic, and departmental separation of attorneys; prohibitions against and sanctions for discussing confidential matters; established rules and procedures preventing access to confidential information and files; procedures preventing a disqualified attorney from sharing in the profits from the representation; and continuing education in professional responsibility. [citations omitted] [3] The situation considered above differs from one in which an attorney may be more likely to get a bonus from his or her firm if he or she prevails on behalf of a client seeking a substantial recovery. Under such circumstances the interests of the client and the attorney are not adverse to each other. [4] Other cases that discuss disqualification in criminal cases include: People v. Lopez, supra, 155 Cal.App.3d 813, 827; People v. Hamilton (1988) 46 Cal.3d 123, 139 [249 Cal.Rptr. 320]; and People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 270-271 [137 Cal.Rptr. 476] [5] See footnote 2, above, concerning the requirements for an ethical screen. Ļ . . 4 of 4 5/11/2011 12:46 PM SUCCESS IS A PLEA BARGAIN, A WIN IS A LESSER CHARGE A Report on the Offices of the Public Defender and Alternate Defender June 7, 2011