A frequently asked question is, “How can you litigate against the state if you are paid by the state?” The answer is that a lawyer paid by someone other than the client has an ethical obligation to the client, not to the party paying for the lawyer’s services.
Rules regulating the Florida Bar: 4-1.8(6). A public defender is constitutionally obligated to act independently of the government and oppose it in adversary litigation.
Polk County v. Dodson, 454 U.S. 312 (1981). In this circuit, we represented the interests of clients, not the state. Florida’s Attorney General’s Office, however, fought to limit our representation of clients. This has resulted in litigation over the boundaries of our authority, as indicated by the following four cases.
In State ex rel. Smith v. Brummer, 426 So. 2d 532 (Fla. 1982), we filed a federal class action suit to resolve constitutional violations about involuntary civil commitment proceedings. The attorney general instituted a quo warranto proceeding in the Florida Supreme Court to challenge the public defender’s authority to pursue the class action. The Supreme Court did not allow the particular class action because the class included persons that were not indigent and whom the public defender did not previously represent. Nevertheless, the Supreme Court reaffirmed the public defender’s authority to continue to represent clients in federal court on an individual basis, and the public defender’s essential role of acting independently of the government. Id. 533.
In State ex rel. Smith v. Brummer, 443 So. 2d 957 (Fla. 1984), we accepted appointments by a federal district court to represent former clients in federal habeas proceedings. The attorney general filed a quo warrant to petition in the Florida Supreme Court to remove the appointments. The Supreme Court held that the public defender’s statutory authority was limited to appointments by state, not federal, courts. It noted, though, that its decision applied only to federal court appointments, and did not relate to the public defender’s authority to continue its representation of a state-appointed client in federal court.
In State ex rel. Butterworth v. Brummer, 680 So. 2d 424 (Fla. 1996), a state agency proposed rules governing the certification of domestic violence treatment programs. We filed a challenge to these rules before the Department of Administrative Hearings on the grounds that the proposed rules compelled speech, in violation of the first amendment, and promoted gender discrimination, in violation of the equal protection clause. The attorney general filed a quo warrant to petition in the Florida Supreme Court to contest our authority to challenge these rules. The petition was denied as moot because we withdrew our challenge to the rules.
In Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006), we filed a petition for state post-conviction relief on behalf of a client serving a life sentence when a new witness came forward who would exonerate him. The appellate court ruled that we could not continue representing our client in post-conviction matters without the trial court reappointing our office for that specific purpose. We disagree with that decision and believes that it interferes with the professional responsibility of an attorney to continue pursuing relief in a case where the merits of the case justify it. We sought review of the Mann decision in the United States Supreme Court.