WHOLE COURT

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 29, 2021

In the Court of Appeals of Georgia

A21A0282. BUCKNER-WEBB et al. v. THE STATE.

RICKMAN, Presiding Judge.

Following Diane Buckner-Webb,Theresia Copeland, Sharon Davis-Williams,

Tabeeka Jordan, Micheal Pitts, and Shani Robinson’s convictions for conspiracy to

violate the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act,

OCGA § 16-14-1 etseq., and other crimes, an attorney was appointed to represent all

six of them for their pending motions for new trial. That attorney subsequently filed

a motion to withdraw as counsel for the six appellants due to alleged conflicts of

interest. After a hearing, the trial court denied counsel’s motion to withdraw, but

issued a certificate of immediate review and the appellantsfiled an application in this

Court for interlocutory review. 
When their application for interlocutory review was denied and their

subsequent petition for certiorari was also denied, the appellants claimed that the trial

court’s order fell within the very small class of interlocutory rulings that are deemed

to be final under the collateral order doctrine. Under the collateral order doctrine, an

order that does not resolve the entire case in the trial court may be appealed

immediately if it “(1) resolves an issue that is ‘substantially separate’ from the basic

issuesto be decided at trial, (2) would result in the loss of an important right if review

had to await final judgment, and (3) completely and conclusively decides the issue

on appeal such that nothing in the underlying action can affect it.” (Citation and

punctuation omitted.) Duke v. State, 306 Ga. 171, 174 (1) (829 SE2d 348) (2019).

The appellants’ argument fails because the order at issue does not satisfy the second

requirement of the collateral order test; that is, the appellants would not lose an

important right if appellate review must await final judgment.

In Georgia, the collateral order doctrine has never been applied to authorize a

direct appeal from a denial of a motion to withdraw as counsel in a criminal case

based on an alleged conflict of interest. The Georgia Supreme Court has recognized

that pursuant to the collateral order doctrine, “a very small class of interlocutory

rulings are effectively final in that they finally determine claims of right separable

2
from, and collateral to, rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” (Citation and punctuation omitted.)

Duke, 306 Ga. at 172-73 (1). “Thus, an order that satisfies the requirements of the

collateral order doctrine is considered to be effectively final and would be appealable

because it comes within the terms of a relevant statutory right to appeal final

judgments, namely the right prescribed in OCGA § 5-6-34 (a) (1).” (Citation and

punctuation omitted.) Id at 173 (1). 

Here, the appellants have already been convicted and the motion to withdraw

at issue solely concerns their motion for new trial. Should the appellants’ motion for

new trial be denied they have a right to a direct appeal from that denial. And should

this Court determine on appeal that the trial court erred by denying counsel’s motion

to withdraw then the appellants may be entitled to a new hearing on their motion for

new trial. Regardless, appellants will have an avenue to appeal this decision and no

important right will be lost by waiting until the proper time for a direct appeal. In

their motion to withdraw, the appellants acknowledge thisremedy by stating that “[i]f

the [trial court] were to require [appellants] to proceed with joint representation,

3
despite their decisions not to waive an actual conflict, the remedy would be redo any

proceeding that was affected by the conflict.” 

In Duke v. State, Duke argued that the trial court’s order denying his pre-trial

motions seeking public funding for expert witnesses and investigators was subject to

the collateral order doctrine.1 Duke, 306 Ga. at 171, 174 (1) (emphasissupplied). The

Georgia Supreme Court held that the trial court’s order at issue was not a collateral

order because,

Duke has acknowledged that his opportunity for appellate review of the

order will not be lost if his appeal must await final judgment. Indeed, in

his application before this Court, Duke argued that, should he be found

guilty, the jury’s verdict would likely be set aside on appeal given the

importance of expert assistance to the presentation of his defense. Thus,

he will not be left without a remedy in the absence of immediate review

of the trial court’s order by this Court.

Id.

Because the appellants in this case are not left without a future remedy the trial

court’s order denying defense counsel’s motion to withdraw is not a collateral order

and this appeal is dismissed. See Duke, 306 Ga. at 174 (1); see generally Riveria v.

Washington, 298 Ga. 770, 777-778 (784 SE2d 775) (2016) (Georgia Supreme Court

recognized that the collateral order doctrine applies to a very small class of

1

Interestingly, in Duke the remedy would be a new trial, whereas should there

be error in this case the remedy would only be a new motion for new trial hearing.

4
interlocutory rulings and held that the doctrine did not apply to the trial courts’ orders

denying appellants’ motions to dismiss on immunity grounds).

Appeal dismissed. Dillard, P.J., Mercier, Brown, Pipkin and Colvin, JJ, and

Senior Appellate Judge Herbert E. Phipps concur. Gobeil and Hodges, JJ., concur

fully and specially. McFadden, C.J., dissents. Doyle, P.J., concurs in judgment only

in Division 2, joins with McFadden, C.J., in the dissent to Divisions 1 and 3, and

writes specially as to Division 3. Barnes, P.J., Miller, P.J., and Reese, J. join with

Chief Judge McFadden’s dissent and Presiding Judge Doyle’s special dissent.

Markle, J. is disqualified.

5
In the Court of Appeals of Georgia

A21A0282. BUCKNER-WEBB et al. v. THE STATE.

GOBEIL, Judge, concurring fully and specially.

Though the question is close, I am persuaded that the bar for applying the

collateral order doctrine in Georgia is a high one, and the doctrine does not apply here

given the facts and procedural posture of the decision before us. Accordingly, I

concur in the Majority’s dismissal of the appeal.

The dissent disagrees with the Majority’s application of the collateral order

doctrine. And though the issue before us on appeal is a jurisdictional one, the dissent

6
goes on to expound on the merits of the underlying motion to withdraw. In doing so,

the dissent raises compelling concerns in the abstract, but it does not focus

sufficiently on the facts and circumstances of the case at hand.

Accordingly, and although the underlying merits are beyond the scope of this

special concurrence, I feel compelled to highlight a few points. This Court evaluates

a trial court’s denial of a motion to withdraw under an abuse of discretion standard.

See Odum v. State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007). Here, the trial

court considered the motion and in an in camera hearing, assessed the alleged

conflicts, and found nothing to warrant granting the motion.

I am authorized to state that Judge Ken Hodges joins me in concurring fully

and specially.

7
In the Court of Appeals of Georgia

A21A0282. BUCKNER-WEBB v. STATE. 

MCFADDEN, Chief Judge, dissenting. 

This appeal is properly before us under the collateral order doctrine. The issue

is one of first impression in Georgia. But nearly all the courts that have decided the

issue, federal and state, have held that orders denying an attorney’s request to

withdraw fall within the collateral order doctrine. Once a court compels an attorney

to violate ethical obligations, the harm is done. 

8
As to the merits of the appeal, the trial judge abused his discretion in denying

counsel’s motion to withdraw because counsel cannot ethically represent all six

defendants due to conflicts of interest. So I respectfully dissent. 

1. Facts and procedural posture. 

The state indicted 35 AtlantaPublic School employeesfor conspiracy to violate

the Georgia RICO Act and other offenses arising out of alleged cheating on

standardized tests. Of those indicted, twelve were convicted. The jury found one of

the defendants not guilty of any charges, found the other eleven defendants guilty of

conspiracy to violate the RICO Act, and found some of those defendants guilty of

additional offenses. The trial court imposed various sentences of confinement.

Each of those defendants were represented by separate counsel at trial. After

the trial, an attorney was appointed through the public defender’s office to jointly

represent six of the defendants who were indigent and whose trial attorneys had

already filed separate motions for new trial. 

Upon reviewing the record, the attorney appointed through the public

defender’s office concluded that his clients’ interests were in conflict: that his duties

to his several clients would “materially and adversely affect the representation of”

one another. See Rule 1.7 (a) of the Georgia Rules of Professional Conduct found at

9
State Bar Rule 4-102. He then advised his clients of his conclusion. They all indicated

that, even if waiver of the conflict were permissible, they would not agree to waive

it. See Id., Rule 1.7 (b). 

The attorney then filed a motion to withdraw as counsel for those six

defendants due to conflicts of interest. After a hearing, the trial court denied counsel’s

motion to withdraw, but issued a certificate of immediate review. The defendants

filed an application for interlocutory review, which was denied. They also filed this

direct appeal, invoking the collateral order doctrine.

2. Applicability of the collateral order doctrine. 

The majority finds that we lack jurisdiction because the collateral order

doctrine does not apply to the trial court’s interlocutory order denying counsel’s

motion to withdraw. I disagree. 

[T]he collateral order doctrine recognizes that a very small class

of interlocutory rulings are effectivelyfinal in that they finally determine

claims of right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent of the

cause itself to require that appellate consideration be deferred until the

whole case is adjudicated. Thus, an order that satisfies the requirements

of the collateral order doctrine would be appealable because it comes

within the terms of the relevantstatutory right to appeal final judgments. 

10
Roberts v. State, 309 Ga. 639, 639-640 (1) (847 SE2d 541) (2020) (citations and

punctuation omitted). Under the collateral order doctrine,such an interlocutory ruling

“may be appealed immediately if it (1) resolves an issue that is substantially separate

from the basic issuesto be decided at trial, (2) would result in the loss of an important

right if review had to await final judgment, and (3) completely and conclusively

decides the issue on appeal such that nothing in the underlying action can affect it.”

Duke v. State, 306 Ga. 171, 174 (1) (829 SE2d 348) (2019) (citation and punctuation

omitted). 

The majority does not addressthe first and third requirements. They are clearly

satisfied in this case. Denial of the motion to withdraw resolved an issue substantially

separate from the basic issues to be decided at trial. And that denial conclusively

decided the issue of withdrawal such that nothing in the underlying action can affect

it. See generally State v. Rowe, 308 Ga. 806, 810 (2) (b) (843 SE2d 537) (2020)

(holding in pertinent part that an order sealing certain records was substantially

separate from the criminal prosecution and that the order conclusively decided that

issue). The majority holds, however, that the second requirement of the doctrine has

not been satisfied because denial of the motion to withdraw could be challenged in

an appeal after final judgment.

11
But the majority has not cited, and I have not found, any Georgia cases

squarely addressing the issue of whether a trial court’s denial of a motion to withdraw

as counsel in a criminal case due to conflicts of interest is directly appealable under

the collateral order doctrine. But plainly, as held by federal authority discussed

below, the collateral order doctrine does apply because counsel would suffer an

irretrievable loss. 

A bar rule is at issue. Rule 1.7 (a) provides: “A lawyer shall not represent or

continue to represent a client if there is a significant risk that . . . the lawyer’s duties

to another client . . . will materially and adversely affect the representation of the

client, except as permitted in (b).” Subsection (b) sets out the limited circumstances

and the procedures under which a client can waive a conflict. “The maximum penalty

for a violation of this Rule is disbarment.” Rule 1.7 (c). This court and the superior

court are without power to immunize counsel from that penalty. 

Contrary to the majority ruling, the issue before us is not squarely addressed

in our Supreme Court’s decision in Duke, supra. Duke does address the scope of the

collateral order doctrine’srequirement of irretrievable loss of an important right. But

it does so in a context too different from the present case to be instructive. Duke did

not involve the denial of a motion to withdraw due to conflicts of interests. Rather it

12
held that review after final judgment was an adequate remedy for a very different

issue: denial of requests for certain pretrial funding. Id. at 174 (1). 

It is true, as the majority finds, that the denial of the motion to withdraw could

be enumerated as error in an appeal after a final judgment. But reversal of that final

judgment based on an erroneous denial of the motion to withdraw would not undo the

harm to counsel of having been compelled to commit an unethical act — especially

one that could result in disbarment. 

In the absence of controlling Georgia authority, we turn to foreign authority.

In particular, we look to federal collateral order case law in developing “Georgia’s

version of the doctrine. See Patterson v. State, 248 Ga. 875, 875-877 (287 SE2d 7)

(1982) (looking to federal collateral order case law in developing the doctrine under

Georgia law); Scroggins v. Edmondson, 250 Ga. 430, 432 (297 SE2d 469) (1982)

(same).” Warren v. State, 297 Ga. 810, 811 n. 2 (778 SE2d 749) (2015). 

“[N]early all of the courts which have decided thisissue, federal and state, have

held that orders denying an attorney’s request to withdraw fall within the collateral

order doctrine.” In re Franke, 55 A3d 713, 717 (I) (Md. App. 2012). As detailed

below, the United States Courts of Appeals for the Second, Third, Fourth, Sixth, and

Seventh Circuits have so held. And a Georgia district court in the Eleventh Circuit

13
has also recognized the applicability of the doctrine to the denial of an attorney’s

motion to withdraw. See Brown v. United States, 2009 U. S. Dist. LEXIS 9022 at

*17-18 (IV) (C) (S. D. Ga. 2009) (noting that counsel could have directly appealed

interlocutory order denying his motion to withdraw under the collateral order

doctrine). I have found no federal circuit court opinionsthat agree with the majority’s

view. Nor did the court of last resort of the District of Columbia find any opinions

agreeing with the majority’s view when it addressed the issue: “The [federal]

appellate courts that have decided the question have held that an order denying an

attorney’s motion to withdraw satisfies [the collateral order doctrine’s] three

conditions and thus is immediately appealable.” Galloway v. Clay, 861 A2d 30, 32

(II) (D.C. App. 2004) (citations and footnote omitted). And “[t]he major treatise

writers appear to endorse this holding. See 19 MOORE’S FEDERAL PRACTICE §

202.07 [1] (3d ed. 2004) at 202-29 et seq.; 15B WRIGHT, MILLER & COOPER,

FEDERAL PRACTICE AND PROCEDURE § 3914.21 (2d ed. & Supp. 2004) at

40-41.” Id. See also Brandon v. Blech, 560 F3d 536, 537 (II) (6th Cir. 2009) (order

compelling an attorney to continue representation is the sort of order the collateral

order doctrine contemplates because it conclusively determines the withdrawal

question, is unrelated to the merits, and cannot be rectified after a final judgment);

14
Fidelity National Title Ins. Co. of New York v. Intercounty National Title Ins. Co.,

310 F3d 537, 539 (7th Cir. 2002) (denial of attorney’s request to withdraw was

immediately appealable as a collateral order); Whiting v. Lacara, 187 F3d 317, 319-

320 (a) (2d Cir. 1999) (denial of counsel’s motion to withdraw satisfied the three

requirements of the collateral order doctrine). 

In the criminal context, as in the civil, the collateral order doctrine is no less

applicable to the denial of a motion to withdraw as counsel. 

Although the weight of the authority holding that orders denying

motions to withdraw are collaterally appealable is civil in nature, the

reasonsfor applying the collateral order doctrine are equally compelling

in the criminal context. . . . The ethical violations counsel would be

forced to commit for conflicts of interest are the same in the civil and

criminal context. Once a court compels an attorney to violate ethical

obligations, the harm is done, whether the matter be a civil or a criminal

trial.

United States v. Bellille, 962 F3d 731, 737 (II) (3rd Cir. 2020). Thus, a denial of

counsel’s “motion to withdraw [where] there [is] a conflict of interest would be

effectively unreviewable because the harm of violating one’s ethical obligations

would be complete and could not be undone after [final judgment in the] trial

[court].” Id. See also United States v. Oberoi, 331 F3d 44, (2d Cir. 2003) (“Because

the [trial] court’s order[denying the motion to withdraw] conclusively determined the

15
issue of [counsel’s] continued representation of [defendant] and cannot be effectively

reviewed on final appeal, we have jurisdiction over this interlocutory appeal.”);

Whiting, supra at 320 (a) (“[O]nce a final judgment has been entered, the harm to

[counsel] will be complete, and no relief can be obtained on appeal.”) (citations

omitted). 

The reasoning of these federal courts is persuasive. Here, the harm to counsel

of being forced to violate his ethical obligations by representing clients with

conflicting interests would be complete and effectively unreviewable after a final

judgment below. “The injury to a counsel forced to represent [multiple] client[s]

against his will is . . . irreparable, and the [trial] court’s decision would be effectively

unreviewable upon final judgment.” Whiting, supra at 320 (citations omitted). Accord

United States v. Shaw, 2009 U. S. App. LEXIS 2004 (4th Cir. 2009) (exercising

jurisdiction over defendant’s direct appeal from denial of counsel’s motion to

withdraw under the collateral order doctrine because the order is one “affecting rights

that will be irretrievably lost in the absence of an immediate appeal”). 

The majority makes no effort rebut counsel’s showing that he would suffer

irremediable harm if forced to commit an ethical violation, particularly one for which

an available penalty is disbarment. Instead the majority looks for irremediable harm

16
to the clients and finds none. In so doing, the majority disregards the case law from

other jurisdictions — including the federal courts — which finds irremediable harm

to counsel from denial motion to withdraw sufficient to justify review under the

collateral order doctrine. As noted above, our Supreme Court has made a practice of

“looking to federal collateral order case law in developing the doctrine under Georgia

law.” Warren v. State, 297 Ga. 810, 811, 778 S.E.2d 749, 752, n. 2 (2015). We should

do so too. 

That said, these defendants will be harmed if they are forced to be represented

by conflicted counsel. A particular strategic choice might be optimal for one client,

sub-optimal for another, and harmful to a third. Such conflicts are especially likely

here, given the evidence of top-down pressure to cheat and of these defendants’

differing levels of authority. A criminal defendant is “entitled to representation on

appeal by effective, i.e., conflict-free, counsel as a matter of constitutional law.”

Garland v. State, 283 Ga. 201, 203 (657 SE2d 842) (2008). That right is guaranteed

by the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U.S. 140 (126 SCt.

2557, 165 LE2d 409 (2006) (addressing right to retained counsel of choice). See also

Hall v. Jackson, ___ Ga. ___ (2) (a) (Case No. S20A1574, decided February 1, 2021)

(criminal defendants in Georgia are constitutionally entitled to effective assistance

17
of counsel, which includes the right to representation that is free of actual conflicts

of interests). 

It follows that “[w]e have jurisdiction to consider [this] appeal under the

collateral order doctrine . . . [since the trial] court’s denial of [the] motion to withdraw

as counsel satisfies each of the three requirements [of the doctrine] and is therefore

immediately appealable.” United States v. Barton, 712 F3d 111, 116 (I) (2d Cir.

2013) (citations and punctuation omitted). See also United States v. Culbertson, 598

F3d 40, 49 (III) (B) (2d Cir. 2010) (“orders denying motions for attorneys to

withdraw as counsel . . . meet the requirements of the collateral order doctrine”);

Brown v. United States, supra (counsel could have directly appealed denial of his

motion to withdraw under the collateral order doctrine). So the instant appeal should

not be dismissed on jurisdictional grounds. 

3. Merits of the motion to withdraw as counsel. 

The defendants correctly assert that the trial court erred in denying their

attorney’s motion to withdraw as counsel. Denial of the motion to withdraw would

be sustainable only if the trial court had determined that no real conflict of interest

exists. 

18
When defense counsel advisesthe trial court before or at trial that

he is laboring under an actual conflict of interest, the court usually must

defer to that representation and appoint new counsel for the defendant,

as the attorney is in the best position to be aware of conflicting interests

and makes the representation as an officer of the court. The trial court

may, however, explore the adequacy of the basis of defense counsel’s

representation regarding a conflict of interests without improperly

requiring disclosure of the confidential communications of the client. If

the trial court does not determine that no real conflict of interest exists

but still denies a request for new counsel based on an attorney’s

representation that a conflict of interest exists, reversal is required.

Williams v. State, 302 Ga. 404, 409 (3) (807 SE2d 418) (2017) (citations and

punctuation omitted; emphasis added). 

Georgia’s requirement of an affirmative determination that no real conflict

exists is consistent with the holding of the United States Supreme Court that

violations of the Sixth Amendment right to counsel “are structural error.” United

States v. Gonzalez-Lopez, 548 U.S. 140 (126 SCt. 2557, 165 LE2d 409) (2006)

(addressing right to retained counsel of choice). The consequences of structural error

“are necessarily unquantifiable and indeterminate.” Id. at 150. Structural error is not

subject to harmless error analysis. “Harmless-error analysis in such a context would

be a speculative inquiry into what might have occurred in an alternate universe.” Id.

At the end of the hearing in the present case on the motion to withdraw, the

trial court announced that he would deny the motion and explained that counsel’s

19
showing was not “specific enough.” That explanation isinconsistent with the required

affirmative determination that no real conflict of interest exists. If the record could

sustain a finding that no real conflict exists, a remand for that determination would

be in order. But it cannot. 

Counsel averred in his motion to withdraw that there were actual conflicts of

interests in jointly representing the defendants that would require him to omit issues

that he would otherwise raise, that all six defendants had declined to waive the

conflicts, and that the General Counsel’s office of the State Bar of Georgia had orally

advised him

2

that he could not ethically continue representing the defendants due to

the conflicts. At the hearing on the motion, counsel explained that the six defendants

worked at different levels of authority within the school system, from executive

directorsto classroomteachers, so the strength of the evidence against each defendant

differed based on their respective positions in the hierarchy. And, as noted above,

they received different verdicts at trial. Counsel advised the trial court that he could

not ethically represent the defendants because he would have to make claims

comparing the relative strength of the evidence against each defendant and he would

2The office of the General Counsel of the State Bar of Georgia offers such

guidance through its Ethics Helpline, 404-527-8741, 800-682-9806.

20
be unable to raise certain issues that would benefit some defendants while harming

others, thereby pitting one defendant against another.

Counsel cited, as the clearest examples of potentially viable issues that could

not be properly raised due to the conflicting interests, claims regarding severance of

defendants and claims regarding compelled statements of public employees under

Garrity v. New Jersey, 385 U. S. 493 (87 SCt 616, 17 LE2d 562) (1967). And he

further advised the court that the conflicts would limit his ability to raise multiple

other fair trial issues concerning evidentiary rulings, cross-examination of witnesses,

and ineffective assistance of counsel.

As noted above, “[a] criminal defendant in Georgia is constitutionally entitled

to the effective assistance of counsel during histrial, motion for new trial proceeding,

and direct appeal. One component of the right to the effective assistance of counsel

is the right to representation that is free of actual conflicts of interests.” Hall v.

Jackson, supra (citations and punctuation omitted). An actual conflict of interests

exists “when the conflict significantly and adversely affects the appellate lawyer’s

representation of the defendant.” Id. at ___ (2) (a). See also Tanner v. State, 303 Ga.

203, 207 (2) (811 SE2d 316) (2018) (An actual conflict of interest “adversely affects

21
counsel’s performance, [and is] not just a mere theoretical division of loyalties.”)

(citation and punctuation omitted). 

In this case, contrary to the trial court’s ruling, counsel showed that there are

actual conflicts of interests, not a mere theoretical division of loyalties, because his

“inability to raise what [he] believe[s] to be valid . . . claims in the amended motion

for new trial [and on appeal will] significantly and adversely affect[ his]

representation of [the defendants].” Hall, supra at ___ (2) (a). See also State v.

Abernathy, 289 Ga. 603, 605 (1) (715 SE2d 48) (2011) (“A significant effect on the

representation may be found, for example, where counsel is shown to have refrained

from raising a potentially meritorious issue due to the conflict[.]”) (citation omitted).

Because counselshowed that there exist actual conflicts of intereststhat would

cause him to refrain from raising potentially meritoriousissues, the trial court abused

its discretion in denying the motion to withdraw. See Bourassa v. State, 345 Ga. App.

463, 471 (2) (811 SE2d 113) (2018) (“We review a trial judge’s decision on a

counsel’smotion to withdraw for abuse of discretion.”), vacated on other grounds 306

Ga. 329 (830 SE2d 189) (2019). The trial court’s ruling therefore should be reversed.

I am authorized to state that Presiding Judge Barnes, Presiding Judge Miller,

Presiding Judge Doyle and Judge Reese join in this dissent.

22
In the Court of Appeals of Georgia

A21A0282. BUCKNER-WEBB et al. v. THE STATE.

DOYLE, Presiding Judge.

I join with the dissent in Divisions 1 and 3 fully, but join Division 2 as to

judgment only. In addition, I write separately to Division 3 to point out that based

upon my review of the record, the trial court clearly abused its discretion by

denying defense counsel’s motion to withdraw.

23
In Glasser v. United States,

3

 the United States Supreme Court held that

criminal defendants have a Sixth Amendment right to assistance of counsel that is

“untrammeled and unimpaired by a court order requiring that one lawyer shall

simultaneously represent conflicting interests.”4

 “Defense counsel have an ethical

obligation to avoid conflicting representations and to advise the court promptly

when a conflict of interest arises during the course of trial.”

5

[S]ince the decision in Glasser, most courts have held that an

attorney’s request for the appointment of separate counsel, based on

his representations as an officer of the court regarding a conflict of

interests, should be granted . . . [because t]he attorney representing

[multiple] defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of interest

exists or will probably develop in the course of a trial.

6

3

 315 U. S. 60 (62 SC 457, 86 LE 680) (1942). 

4

 Id. at 70.

5 Cuyler v. Sullivan, 446 U. S. 335, 346 (100 SC 1708, 64 LE2d 333) (1980).

6

(Punctuation omitted.) Holloway v. State, 435 U. S. 475, 486 (II) (98 SCt

1173, 55 LE2d 426) (1978). We note that in this case the trial court was considering

a motion to withdraw based on defense counsel’s representations of conflicts of

interest arising in preparation of a motion for new trial, as opposed to appellate

consideration of an ineffective assistance of counsel argument based on trial

counsel’s concurrentrepresentation of multiple defendants. See, e.g., Tolbert v. State,

298 Ga. 147, 148-157 (2) (a)-(d) (780 SE2d 298) (2015).

24
A trial court may “explor[e] the adequacy of the basis of defense counsel’s

representations regarding a conflict of interests without improperly requiring

disclosure of the confidential communications of the client.”7

In doing so,

however, it must “refrain from embarrassing counsel in the defense of an accused

by insisting, or indeed, even suggesting, that counsel undertake to concurrently

represent interests which might diverge from those of his first client, when the

possibility of that divergence is brought home to the court.”8

In this case, after a hearing and ex parte conference with defense counsel on

the motion, the trial judge announced in open court that he had not heard conflicts

of interest “specific enough” with regard to defense counsel’s joint representation

of all six defendants, and he noted that he found that “the conflicts . . . are not

sufficient to require severance and new counsel.”9 The court’s acknowledgment

7 Holloway, 435 U. S. at 487.

8

(Punctuation and emphasis omitted.) Id. at 486, quoting Glasser, 315 U. S.

at 71, 76.

9 As the dissent notes, defense counsel gave clear examples of appellate

arguments he would be unable to make if he represented all of the defendants due to

conflicting interests, including claims regarding severance, compelled statements of

public employees, evidentiary rulings, cross-examination, and ineffective assistance

of counsel. 

25
that defense counsel did, however, provide an least an example of a conflict

required the court to grant the motion to withdraw.10

 Instead, the trial court repeatedly pressed defense counsel for more specific

examples of the conflict. The court was understandably angry about the delay

caused by the public defender’s office’s decision to assign a single attorney to

represent the six indigent defendants when it was known at the outset there could

be a conflict and about the two-and-a-half years it took defense counsel to review

the trial transcript to identify potential appellate arguments.

11

 The court also

expressed concern on multiple occasions about the cost to the State to fund

separate counsel for each of the defendants. And when trial counsel advised the

court that giving detailed examples of the conflict would require him to violate his

10 See Holloway, 435 U. S. at 485; Williams v. State, 302 Ga. 404, 409 (3) (807

SE2d 418) (2017) (holding that if a trial court determines “that [a] real conflict of

interest exists but still denies a request for new counsel based on an attorney’s

representation that a conflict of interest exists, reversal is required”) (emphasis

supplied).

11 For example, at one point, in response to defense counsel’s comment that

continuing to representing all six defendants was a conflict of interest that might

result in his professional discipline, the trial courtstated, “Well, I feel like giving you

some discipline right now. What I would like to do is just pull a trapdoor and have

some alligators down there is what I would like to do when you come to this court

two and a half years [later when] everybody is waiting, why, why – and you are not

even close to being through with the brief, are you?” 

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ethical obligations, the trial court again improperly pressed for more specificity

and intimated that as long as the court ordered the defense counsel to represent all

six defendants, counsel could not be disciplined, regardless of whether the

representation was unethical or harmful to the defendants.

12

In light of defense counsel’s “representations as an officer of the court

regarding . . . conflict[s] of interest,” the trial court abused its discretion by

denying the motion to withdraw.13

I am authorized to state that Presiding Judge Barnes, Presiding Judge Miller,

and Judge Reese join in this dissent.

12 See Holloway, 435 U. S. at 485 (holding that even though “defense counsel

might have presented the requests for appointment of separate counsel more

vigorously and in greater detail[,] . . . the trial court’s responses hardly encouraged

pursuit of the separate-counsel claim . . . and as to presenting the basis for that claim

in more detail, defense counsel was confronted with a risk of violating, by more

disclosure, his duty of confidentiality to his clients.”). 

13

 Id. at 485.

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