The writer Jerry Pournelle postulated The Iron Law of Bureaucracy. It goes like this. In a bureacratic organization, there are two types of people. First, there are the people who are devoted to the goals of the organization. Second, there are those dedicated to the organization itself. According to Pournelle, “in every case the second group will gain and keep control of the organization. It will write the rules …”

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

One would expect this unusual alliance to be formed to oppose something really bad, or at least something pretty radical. But actually, no. Here’s the advisory opinion that they opposed. It was an opinion (PDF), by the way, that came from the State Bar of Georgia.

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

Mr. Edwards, nominally a public defender and a prosecutor (who has an incentive to win criminal cases) teamed up to argue that Conflicts should not be imputed within public defenders’s officers. And when is there a conflict? The law on that has been around for quite some time. It’s codified in Rule 1.7 of the Georgia Rules of Professional Conduct:

A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.

The position of the statewide public defenders is literally: “this is a luxury the poor can’t have.”

What does all of this mean? In my office, I would be in serious trouble if I represented two defendants with adverse interests to one another. And, if I take the risk of representing co-defendants and a conflict arises later, I have to walk away from both clients. For instance, I can’t represent two defendants if there is a chance that one will take a plea and testify against the other. But the public defender standards councilwould like a special rule for the poor so that they don’t have to provide the poor with conflict-free representation.

As Bill Rankin of the AJC noted, Justice Nahmias asked a very good question yesterday: “Why are you asking us to treat public defenders offices differently?”

The answer, of course, is money. The legislature created the state-wide public defender system and doesn’t want to fund it adequately. And, instead of seeking adequate funding or saying that constitutional representation comes at a cost, the organization seeks to tell the poor that they better hire a lawyer if they want conflict-free counsel.

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

No matter how the Court might rule on this matter, the fact that the public defenders and prosecutors would team up to take this position should freak you out if you are accused of a crime. In fact, if you are technically indigent and there is a distant relative who could pay for a lawyer, I’d advise you to run, don’t walk, away from GPDSC. The Iron Law of Bureaucracy is alive and well in how the indigent are defended in Georgia.

Or you could leave it to Edwards and his ilk. He says that you can trust the Council. To quote him directly, “We are the experts in representing poor people.” They know what’s best for all poor people out there.