IN THE SUPREME COURT OF IOWA

No. 13–1226

Filed March 13, 2015

Amended May 21, 2015

STATE OF IOWA,

Appellee,

vs.

LAVELLE LONELLE McKINLEY,

Appellant.

Appeal from the Iowa District Court for Polk County, Arthur E. 

Gamble, Judge.

A criminal defendant appeals the district court’s order 

disqualifying the entire Des Moines adult public defender’s office from 

representing him. REVERSED AND REMANDED.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant 

Attorney General, John P. Sarcone, County Attorney, and Nan M. Horvat, 

Assistant County Attorney, for appellee.

Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for amicus 

curiae Heather Hickman.
2

HECHT, Justice.

The district court appointed two attorneys from the Des Moines 

adult public defender’s office to represent the defendant on a murder 

charge. After reviewing the State’s list of expected witnesses, the two 

defense attorneys realized other attorney colleagues in their office had 

previously represented three of the State’s witnesses on unrelated 

matters. The attorneys brought this potential conflict of interest to the 

district court’s attention and requested a ruling whether a conflict of 

interest precludes them from representing the defendant. After the 

hearing, the district court concluded a conflict existed and disqualified 

all attorneys employed at the Des Moines adult public defender’s office. 

Upon review, we conclude the potential conflict of interest shown under 

the circumstances presented in this record did not justify disqualification 

of the attorneys. Accordingly, we reverse and remand for further 

proceedings.

I. Background Facts and Proceedings.

The State of Iowa charged Lavelle McKinley with first-degree 

murder following the death of Cynthia Rouse. The district court 

appointed two attorneys from the Des Moines adult public defender’s 

office, Jennifer Larson and Heather Lauber, to represent McKinley. Long 

before trial was to begin, Larson and Lauber discovered other attorneys 

in their office had previously represented three potential witnesses for 

the State: Cheyenne Rouse, the decedent’s husband who discovered the 

body; Heather Hickman, the decedent’s neighbor whom the State expects 

to testify she heard footsteps near the decedent’s apartment shortly 

before the alleged homicide; and Wayne Manuel, the decedent’s brotherin-law. Neither Larson nor Lauber had ever personally represented these 

witnesses, but other public defenders from the same office (Jill 
3

Eimermann and Jennifer Russell) had done so. The prior 

representations were all unrelated to the murder charge against 

McKinley and had all concluded months or years before McKinley was 

arrested for the crime charged in this case.

Larson and Lauber requested a hearing and a determination 

whether a conflict of interest existed requiring their disqualification. The 

court scheduled a hearing and appointed independent counsel to 

represent each of the three potential witnesses. At the hearing, Larson 

and Lauber asserted their public defender colleagues’ past 

representations of Rouse, Hickman, and Manuel on unrelated matters 

presents no conflict because those matters concluded well before 

McKinley was charged and therefore are not concurrent with the 

representation of McKinley. They contended the temporal separation 

between the current representation of McKinley and the previous 

concluded representations of the witnesses provides assurance against 

the risk of divided loyalties in continuing to represent McKinley. 

Larson and Lauber assured the court they had no information 

about the matters for which their colleagues had previously represented 

Rouse, Hickman, and Manuel; they had not reviewed the existing files 

kept in the public defender’s office pertaining to those matters; and they 

had already instituted measures preventing them from accessing such 

information and files during the pendency of this case. Therefore, they 

contended any potential conflict of interest arising from the prior 

representations of the three witnesses by other attorneys in the 

Des Moines office should not be imputed to them. Additionally, the 

hearing record included a colloquy with the court in which McKinley 

expressly acquiesced in any potential conflict of interest and indicated 

his desire to have Larson and Lauber continue representing him. After 
4

the hearing, McKinley filed a document confirming his acquiescence in 

any potential conflict and reaffirming his wish for continued 

representation by Larson and Lauber.1

Rouse and Hickman informed the court through their counsel who 

were present at the hearing that they would neither waive any attorney–

client privilege with the public defender’s office nor consent to Larson 

and Lauber representing McKinley. Manuel’s appointed attorney also 

attended the hearing and disclosed he had been unable to contact or 

consult with Manuel.2 The State urged the court to disqualify the entire 

Des Moines adult public defender’s office. The State based its position in 

part on the concern that any conviction resulting from a trial in which 

McKinley is represented by Larson and Lauber might be subject to 

reversal if an appellate court concludes on appeal that a conflict of 

interest adversely affected their representation of McKinley.

After the hearing, the court issued a ruling concluding a conflict of 

interest disqualifies all attorneys employed at the Des Moines adult 

public defender’s office from serving as McKinley’s counsel in this case. 

The court’s ruling was based on the proposition that Larson and 

Lauber’s continuing representation of McKinley would breach duties 

owed to the public defenders’ former clients while infringing upon

McKinley’s Sixth Amendment right to conflict-free counsel. The court 

reasoned that disqualification of all attorneys from the same public 

defender’s office is required because an actual, nonspeculative conflict 

1Because we conclude in this case that no actual conflict or serious potential 

conflict justified disqualification of Larson and Lauber, we do not decide whether the incourt colloquy and the written document McKinley filed after the hearing effected a valid 

waiver of the right to conflict-free counsel. See State v. Smitherman, 733 N.W.2d 341, 

348 n.7 (Iowa 2007).

2There was an outstanding warrant for Manuel’s arrest on an unrelated matter.

 
5

existed between the interests of McKinley and those of the three 

witnesses.

The conflict, the court explained, was based on the perception that 

Larson and Lauber’s representation of McKinley was directly and 

materially adverse to Rouse, who had been represented in the past by 

other public defenders from the same office in connection with felony 

drug offenses.3 The court designated the juvenile public defender as 

McKinley’s new counsel.

McKinley applied for discretionary interlocutory review, and the 

State indicated it did not resist. We granted discretionary review and 

retained the appeal.

II. Scope of Review.

The question of whether a conflict exists is a mixed question of fact 

and law. Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003). When a 

defendant claims a violation of the constitutional right to counsel, our 

review is generally de novo. State v. Smith, 761 N.W.2d 63, 68 (Iowa 

2009); State v. Smitherman, 733 N.W.2d 341, 345 (Iowa 2007).

“Whether the facts show an actual conflict of interest or a serious 

potential for conflict is a matter for trial court discretion . . . .” Pippins, 

661 N.W.2d at 548. We review these conflict-of-interest determinations 

for an abuse of discretion. Smith, 761 N.W.2d at 68. “We find an abuse 

of discretion only when the . . . discretion was exercised on grounds or 

for reasons clearly untenable or to an extent clearly unreasonable.” State 

3Although the district court focused primarily on the conflict between the 

interests of McKinley and Rouse, the court concluded Hickman and Manuel’s interests 

were similarly adverse to McKinley’s and further justified the disqualification remedy it 

chose.

 
6

v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997); accord Smith, 761 N.W.2d 

at 68–69; Pippins, 661 N.W.2d at 548.

III. The Parties’ Positions.

The parties are not directly adverse on the disqualification issue. 

McKinley urges reversal of the disqualification order, reinstatement of 

Larson and Lauber as defense counsel, and remand for trial. The State, 

couching its position in furtherance of promoting error-free trials and 

protecting the finality of convictions, agrees the district court may have 

erred—but not because the district court found Larson and Lauber were 

burdened by a conflict of interest. Rather, the State expresses concern 

that if McKinley is convicted, the verdict might be overturned on appeal 

because the district court accepted the county attorney’s suggestion to 

override McKinley’s choice of counsel. See Gary T. Lowenthal, Successive 

Representation by Criminal Lawyers, 93 Yale L.J. 1, 52 (1983) 

[hereinafter Lowenthal] (“Even when the court appoints counsel for an 

indigent defendant, it cannot discharge the lawyer over the defendant’s 

objection absent compelling justification.”). Thus, the State asks for 

guidance about the balance between conflict-of-interest rules and a 

defendant’s Sixth Amendment rights and requests a remand for a new 

hearing on the conflicts issue.4 

IV. Analysis.

We conclude the circumstances of this case do not rise to the level 

of an actual conflict. We further conclude the present record evidences 

no serious potential conflict likely to divide Larson and Lauber’s loyalties 

or otherwise compromise their duty to provide zealous representation for 

4Hickman, as amicus curiae, contends disqualification of Larson and Lauber 

was appropriate under the circumstances presented here and asserts her refusal to 

consent to the conflict makes the attorneys’ representation of McKinley impermissible.

 
7

McKinley. Thus, the potential conflict presented in this factual scenario 

does not override McKinley’s interest in continuing his attorney–client 

relationship with Larson and Lauber.

A. McKinley’s Interest in Continuity of Appointed Counsel. 

“In all criminal prosecutions, the accused shall enjoy the right . . . to 

have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

The right to counsel also includes a right to choose that counsel. See 

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 

2561, 165 L. Ed. 2d 409, 416–17 (2006). However, McKinley did not hire 

Larson and Lauber; the district court appointed them to represent him. 

The Supreme Court has observed that “the right to counsel of choice 

does not extend to defendants who require counsel to be appointed for 

them.” Id. at 151, 126 S. Ct. at 2565, 165 L. Ed. 2d at 421; see also 

United States v. Espino, 317 F.3d 788, 798–99 (8th Cir. 2003) (“[A]n 

indigent defendant has no right to demand of a court that a particular 

attorney, or particular attorneys, be appointed to represent him.”).

Yet, a right to choose one’s appointed counsel is different from “a 

right to choose to continue an ongoing attorney-client relationship.” 

Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 

San Diego L. Rev. 525, 549 (2007) (emphasis added). Several 

commentators have suggested that although indigent defendants cannot 

choose their initial appointed attorney, they should at least have the 

right to continuity of representation after an attorney has been 

appointed. See, e.g., id.; Lowenthal, 93 Yale L.J. at 52; Anne Bowen 

Poulin, Strengthening the Criminal Defendant’s Right to Counsel, 28 

Cardozo L. Rev. 1213, 1249 (2006) [hereinafter Poulin] (“[C]ourts should 

recognize that indigent defendants have a constitutionally protected right 

to have the initially appointed attorney continue to represent them and 
8

that this right can be overcome only under limited circumstances.”). One 

scholar has observed that “[a] defendant’s relationship with counsel may 

be critical to the quality and effectiveness of the representation the 

defendant receives.” Poulin, 28 Cardozo L. Rev. at 1258. 

Courts are split on the importance of continuity of the relationship 

between indigent defendants and their appointed attorneys. Some have 

concluded there is no right to continuity of appointed counsel. See

United States v. Basham, 561 F.3d 302, 324–25 (4th Cir. 2009); Daniels 

v. Lafler, 501 F.3d 735, 738–39 (6th Cir. 2007); United States v. Parker, 

469 F.3d 57, 61 (2d Cir. 2006); State v. Reeves, 11 So. 3d 1031, 1065–66 

(La. 2009). On the other hand, several courts have concluded once an 

attorney is appointed, the court should be just as hesitant to remove 

them as it would be to remove a privately-retained attorney. See, e.g.,

United States v. Myers, 294 F.3d 203, 206 (1st Cir. 2002) (“Once a court 

appoints an attorney to represent an accused . . . there must be good 

cause for rescinding the original appointment and interposing a new 

one.”); Lane v. State, 80 So. 3d 280, 295 (Ala. Crim. App. 2010) (“With 

respect to continued representation, . . . there is no distinction between 

indigent defendants and nonindigent defendants.”); People v. Harlan, 54 

P.3d 871, 878 (Colo. 2002) (“A defendant’s desire for continued 

representation by a court-appointed public defender is ‘entitled to great 

weight.’ . . . [A]n indigent defendant has a presumptive right to 

continued representation by court-appointed counsel absent a factual 

and legal basis to terminate that appointment.” (quoting Rodriguez v. 

Dist. Ct., 719 P.2d 699, 707 (Colo. 1986))); People v. Burton, 811 N.Y.S.2d 

663, 664 (App. Div. 2006) (reversing a conviction and granting a new trial 

because the trial court “deprived [the] defendant of the right to continued 
9

representation by assigned counsel with whom he had formed an 

attorney-client relationship”). 

We adopt the latter view and hold that once an attorney is 

appointed, they should not be removed “absent a factual and legal basis 

to terminate that appointment.” Harlan, 54 P.3d at 878. Trust and good 

communication are crucial features of an attorney–client relationship. 

This is true when a client has resources and privately retains a lawyer; 

and it is no less true when a client is indigent and obtains counsel 

appointed by the court. In both instances, opportunities for establishing 

trust and effective communication are generally enhanced over time 

through interpersonal contact. Once established, the interest in 

maintaining a relationship of trust with counsel is of no less importance 

to an indigent client than to one with ample resources to hire counsel.

Yet, solicitude for a client’s preference for retaining their courtappointed attorney does not preclude disqualification when 

circumstances require it. “The right to counsel of choice—either initially 

or continued representation—is not absolute . . . either for indigent or 

nonindigent defendants.” Lane, 80 So. 3d at 295; see also Vanover, 559 

N.W.2d at 626–27 (noting “a presumption in favor of the accused’s 

counsel of choice” can be rebutted (internal quotation marks omitted)); 

State v. Williams, 285 N.W.2d 248, 255 (Iowa 1979) (“[T]he right to choice 

of counsel by both indigent and non-indigent defendants is limited 

. . . .”). The court can still disqualify the defendant’s preferred attorney if 

the circumstances present an actual conflict or a serious potential for 

conflict. Wheat v. United States, 486 U.S. 153, 162–63, 108 S. Ct. 1692, 

1699, 100 L. Ed. 2d 140, 150–51 (1988) (giving courts this power when 

one attorney represents codefendants); accord Smith, 761 N.W.2d at 73; 

Vanover, 559 N.W.2d at 626–27.
10

B. Defining “Actual Conflict” and “Serious Potential for 

Conflict.” A conflict does not exist just because one party asserts it 

does. Pippins, 661 N.W.2d at 547 (concluding a defense attorney’s 

characterization of his previous representation of a prosecution witness 

as a conflict “does not necessarily make it so”); cf. Bottoms v. Stapleton, 

706 N.W.2d 411, 419 (Iowa 2005) (refusing, in a civil case, to disqualify 

an attorney “simply because the opposing party alleges the possibility of 

differing interests”). Instead, we must independently evaluate whether 

the circumstances show an actual conflict or serious potential for 

conflict.

The definition of “actual conflict” has been expressed in various 

ways. In State v. Watson, we stated an actual conflict occurs when “ ‘an 

attorney is placed in a situation conducive to divided loyalties.’ ” 620 

N.W.2d 233, 239 (Iowa 2000) (quoting Smith v. Lockhart, 923 F.2d 1314, 

1320 (8th Cir. 1991)); see also Pippins, 661 N.W.2d at 548 (repeating the 

“divided loyalties” standard). We concluded concurrent representation of 

a defendant and a witness against him in a criminal case created divided 

loyalties and burdened the defense’s pretrial investigation and trial 

strategy. Watson, 620 N.W.2d at 240–41; see also United States v. Lech, 

895 F. Supp. 586, 590 (S.D.N.Y. 1995) (defining actual conflict as 

something that “impedes the attorney’s ability to present a vigorous 

defense”).

Later, the Supreme Court defined actual conflict under the Sixth 

Amendment as “a conflict of interest that adversely affects counsel’s 

performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 

1237, 1244 n.5, 152 L. Ed. 2d 291, 305 n.5 (2002); see Smitherman, 733 

N.W.2d at 347 (adopting the Mickens definition in Iowa). We applied the 

“adverse effect” formulation in Smitherman where the trial court had 
11

conducted an inquiry into the conflict in advance of trial. Smitherman, 

733 N.W.2d at 347 (concluding the claimed conflict did not require 

reversal of Smitherman’s conviction because he failed to establish the 

conflict had an adverse effect on trial counsel’s representation).5

In this case, the district court properly held a hearing on the 

conflict issue early in the pretrial stage of the proceedings. The court’s 

analysis of the nature and gravity of the alleged conflict was therefore 

primarily forward-looking rather than a retrospective assessment of 

whether the public defenders’ prior representation of the witnesses had 

any adverse effect on Larson and Lauber’s representation of McKinley. 

The forward-looking assessment at the pretrial stage of this case required 

an assessment of the likelihood that a potential conflict might blossom 

into an actual conflict during either the pretrial stage or the trial stages 

of McKinley’s case. See Smith, 761 N.W.2d at 72; see also Lowenthal, 93 

Yale L.J. at 58 (“In most cases the court can only assess the risk that a 

conflict will occur . . . .”).

This type of prospective analysis applies the “serious potential for 

conflict” standard. A serious potential for conflict occurs when the 

record indicates an actual conflict is likely to arise. See United States v. 

Johnson, 131 F. Supp. 2d 1088, 1099 (N.D. Iowa 2001). We turn to a 

discussion of the nature of the potential conflict at issue in this case and 

our reasons for concluding that the risk it will adversely affect Larson 

and Lauber’s representation of McKinley is insufficient to countermand 

McKinley’s interest in maintaining his attorney–client relationship. 

5We left open in Smitherman the question whether prejudice might still be 

presumed under article I, section 10 of the Iowa Constitution—even without a showing 

of adverse effect arising from a conflict—if a trial court fails to conduct any inquiry 

whatsoever. Smitherman, 733 N.W.2d at 347.

 
12

C. Ethical Rules and Standards. The district court relied 

primarily on Iowa Rules of Professional Conduct 32:1.7 and 32:1.9 in 

concluding an actual conflict exists between the interests of McKinley 

and those of the three witnesses the State intends to call. These rules of 

professional conduct provide guidelines aiding us in determining whether 

an actual conflict is likely to arise if Larson and Lauber continue 

representing McKinley. The guidelines supplied by the rules are 

relevant, but are not alone dispositive. Smith, 761 N.W.2d at 75; see 

Smitherman, 733 N.W.2d at 348–49 (discussing ethical rules mostly in 

dicta).

1. Rule 32:1.7. Rule 32:1.7 prohibits an attorney from 

representing two clients when a concurrent conflict of interest exists. 

Iowa R. Prof’l Conduct 32:1.7(a). A concurrent conflict of interest arises 

in one of two ways: either one representation is “directly adverse to 

another client,” or “there is a significant risk that the representation . . . 

will be materially limited by the lawyer’s responsibilities to another client, 

a former client, or a third person.” Id. r. 32:1.7(a)(1)–(2).

Because the terms are listed separately, “another client” and 

“former client” cannot mean the same thing. We presume statutes or 

rules do not contain superfluous words. See Sallee v. Stewart, 827 

N.W.2d 128, 153 (Iowa 2013); State v. Soboroff, 798 N.W.2d 1, 7 (Iowa 

2011). Thus, “another client” means another current client. Rouse, 

Hickman, and Manuel were no longer current clients of the public 

defender’s office when Larson and Lauber began defending McKinley. 

Accordingly, no concurrent conflict of interest exists under rule 

32:1.7(a)(1).

Thus, if there is any concurrent conflict of interest here, it occurs 

because Larson and Lauber “will be materially limited” by their 
13

responsibilities to the public defender’s former clients Rouse, Hickman, 

and Manuel. See Iowa R. Prof’l Conduct 32:1.7(a)(2). The comments to 

the rules suggest a material limitation occurs when a “lawyer’s ability to 

consider, recommend, or carry out an appropriate course of action” is 

hampered. Id. r. 32:1.7 cmt. [8]. Put another way, the conflict 

formulation under rule 32:1.7(a)(2) is consistent with the definition we 

applied in Watson: a conflict arises when a danger of divided loyalties 

burdens or impedes the attorneys’ defense strategy. Watson, 620 N.W.2d 

at 240–41; see also Lech, 895 F. Supp. at 590.

In Smith, we stated concurrent representation of a defendant and a 

witness on unrelated matters by separate attorneys from the same 

private law firm did not meet the material limitation standard when

counsel for the defendant did not personally represent the witness, had 

no knowledge of the witness’s confidential information, and had taken 

measures to screen himself from the law firm’s personnel and files with 

such information. Smith, 761 N.W.2d at 75. In this case, we conclude 

other public defenders’ past representation of the witnesses on matters 

unrelated to the crime charged against McKinley also presents no risk of 

materially limiting Larson and Lauber’s representation of McKinley. 

Indeed, on this record we find no significant likelihood that Larson and 

Lauber will be foreclosed from formulating or implementing any 

particular defense strategy as a consequence of their colleagues’ former 

representation of the witnesses. Accordingly, we conclude on this record 

Larson and Lauber are not materially limited by a concurrent conflict 

prohibiting their representation of McKinley under rule 32:1.7.

2. Rule 32:1.9. Rule 32:1.9 addresses duties owed by attorneys to 

former clients. The rule states that a lawyer cannot represent a 

subsequent client “in the same or a substantially related matter in which 
14

that person’s interests are materially adverse to the interests of the 

former client.” Iowa R. Prof’l Conduct 32:1.9(a). The district court 

concluded Larson and Lauber’s colleagues’ former representation of the 

three witnesses is substantially related to the defense of McKinley 

because Larson and Lauber will likely use the witnesses’ prior 

convictions for impeachment purposes. Accordingly, it ruled Larson and 

Lauber could not continue representing McKinley without informed 

consent from the witnesses. On review, we conclude the district court’s 

interpretation of the phrase “substantially related” was clearly untenable. 

The murder charge against McKinley is unquestionably not the 

same matter in which the public defender’s office previously represented

Rouse, Hickman, and Manuel. Therefore, a conflict exists under rule 

32:1.9 only if the previously-concluded matters in which the public 

defenders represented the witnesses are substantially related to the 

pending case against McKinley. The comments to rule 32:1.9 reveal 

matters are substantially related if “confidential factual information . . . 

obtained in the prior representation would materially advance the client’s 

position in the subsequent matter.” Iowa R. Prof’l Conduct 32:1.9 cmt. 

[3]. There is no evidence in this record tending to establish any 

confidence or secret learned during the public defenders’ prior 

representations of the witnesses on unrelated matters would be used 

against Rouse, Hickman, or Manuel, or that any confidence or secret 

would materially benefit McKinley’s defense. See Johnson, 131 F. Supp. 

2d at 1088 (“[T]here is simply no conflict of interest that must be 

remedied in [the attorney]’s successive representation of [the witness] 

and Johnson, because there is no risk that attorney-client privileged 

information could be implicated in the course of [the attorney]’s crossexamination of [the witness] on Johnson’s behalf.”). We conclude the 
15

risk of revealing any confidences or secrets revealed to Eimermann or 

Russell is insubstantial here because Larson and Lauber have 

represented through professional statements that they have no 

knowledge of such information and have taken prophylactic measures 

shielding themselves from it. See United States v. Flynn, 87 F.3d 996, 

1001 (8th Cir. 1996) (“In determining whether a conflict of interest exists, 

substantial weight is given to defense counsel’s representations.”); Duvall

v. State, 923 A.2d 81, 95 (Md. 2007) (“[D]efense counsel’s representations 

about specific conflicts of interests should be credited . . . . Lawyers are 

officers of the court and should be treated as such.” (Citation omitted.)).

The record reveals the witnesses have prior criminal convictions. 

Notably, however, these histories are not confidential facts. As one 

commentator explains:

Loyalty to a client, and the appearance of propriety, are 

values that must be protected. However, no rule of ethics 

prevents an attorney from confronting a former client in an 

unrelated case about “generally known” facts, such as a 

felony conviction or other matters . . . of public record.

Jeff Brown, Disqualification of the Public Defender: Toward a New Protocol 

for Resolving Conflicts of Interest, 31 U.S.F. L. Rev. 1, 18 (1996) 

[hereinafter Brown] (footnotes omitted). Therefore, Larson and Lauber’s 

use of the witnesses’ prior convictions for impeachment purposes could 

materially benefit McKinley’s defense, but it would not reveal a client 

confidence or secret. Iowa R. Prof’l Conduct 32:1.9 cmt. [3] (“Information 

that has been disclosed to the public . . . will not be disqualifying.”). 

If the matters for which prior representation was provided are not 

the same as, or substantially related to, the matters for which the 

current representation is provided, the current representation can 

continue without the former client’s consent. See Iowa R. Prof’l Conduct 
16

32:1.9(a); see also Lowenthal, 93 Yale L.J. at 56 (concluding a witness’s 

opposition to defense counsel’s representation of the defendant is 

important if “the court finds a substantial relationship between the 

earlier representation and the defendant’s case”). We find no evidence in 

this record tending to establish a substantial relationship between the 

crime charged in this case and the matters for which attorneys in the 

public defender’s office previously represented the witnesses. 

Accordingly, no conflict has arisen under rule 32:1.9, and Larson and 

Lauber are not prohibited under the rule from representing McKinley, 

even without the witnesses’ consent. See Lowenthal, 93 Yale L.J. at 57 

(“[I]f the relationship between the earlier representation and the 

foreseeable issues in the case before the court is not particularly strong, 

the risk of an ethical violation is small and the defendant’s choice of 

counsel should prevail.”).

Because we conclude there is no actual conflict or serious potential 

for conflict in this case, we need not decide whether a potential conflict 

arising from Eimermann and Russell’s past representations of the three 

witnesses must be imputed to Larson and Lauber.6 

6Conflict-of-interest rules are less strict for lawyers who serve as public officers 

or government employees. See Iowa R. Prof’l Conduct 32:1.11 cmt. [2] (“Because of the 

special problems raised by imputation within a government agency, [rule 32:1.11] 

paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or 

employee of the government to other associated government officers or employees

. . . .”). On two occasions, we have indicated the public defender’s office may be a firm 

for conflict-of-interest purposes, rather than a government agency. Watson, 620 

N.W.2d at 241 (“[A]ll members of the Public Defenders Office were bound to protect [the 

witness]’s confidences and secrets. Thus, . . . co-counsel labored under the same 

conflict of interest . . . .”); see also Smith, 761 N.W.2d at 72 (describing Watson by 

unequivocally stating “both of Watson’s defense attorneys were members of the same 

firm (the public defender’s office)”). On the other hand, in Smitherman we phrased 

imputation in hypothetical terms, expressing no opinion about whether the entire 

public defender’s office was required to withdraw when one individual public defender 

was required to do so. Smitherman, 733 N.W.2d at 348 & n.8. We noted “several 

authorities recognize that different rules should govern the imputation of conflicts 

 
17

D. Lack of Temporal Overlap or Attorney Overlap. Because our 

rules of professional conduct are not alone dispositive on the question of 

whether a serious potential for conflict exists, we also consider whether 

the disqualification ordered by the district court is justified under 

applicable caselaw. As we have noted, neither Larson nor Lauber 

represented Rouse, Hickman, or Manuel. Thus, this case is much 

different from Watson or Smitherman, in which both the defendant and 

the witness were concurrently represented by the same individual 

among government lawyers,” leaving open the question whether public defenders are in 

fact government lawyers. Id. at 348 n.8.

Our research reveals courts confronting this question in other states are divided. 

For example, Colorado public defenders are deemed government lawyers under the 

Colorado Rules of Professional Conduct. Accordingly, conflicts of interest are not 

imputed throughout an entire office in that jurisdiction. See People v. Shari, 204 P.3d 

453, 459 (Colo. 2009). Similarly, in Connecticut, public defenders are not considered

“members of the same firm.” See Anderson v. Comm’r of Corr., 15 A.3d 658, 665 (Conn. 

App. Ct. 2011). On the other hand, Georgia and Maryland treat each public defender 

office for a particular circuit, county, or district as a private firm. In re Formal Advisory 

Op. 10-1, 744 S.E.2d 798, 799 (Ga. 2013) (per curiam); Duvall, 923 A.2d at 93–95. 

Additionally, some states eschew a per se rule in favor of a flexible case-by-case 

approach, evaluating the facts of each case individually when determining whether the 

public defenders involved in the case work in a firm or as government lawyers. See, 

e.g., State v. Severson, 215 P.3d 414, 421, 426–27 (Idaho 2009); Bolin v. State, 137 P.3d 

136, 145 (Wyo. 2006). Notably, both McKinley and the State expressly asserted we 

should resolve this case on grounds other than whether Larson and Lauber are properly 

classified as government lawyers under rule 32:1.11. Accordingly, because we conclude 

there is no actual conflict or potential conflict requiring the disqualification of Larson 

and Lauber in this case, we accept the parties’ suggestions and leave this issue for 

another day.

Furthermore, given our conclusion that the potential conflict does not require or 

justify disqualification under the circumstances presented here, it is appropriate to 

defer a decision on whether public defenders are government attorneys under our 

conflict-of-interest rules until we confront a case in which it might be dispositive. State 

v. Mark, 231 P.3d 478, 516 (Haw. 2010) (concluding that because the court found no 

conflict at all, “the question of whether [the office of the public defender] acted as ‘a 

single firm’ for purposes of this case need not be addressed”); see also State v. Sustaita, 

902 P.2d 1344, 1347 & n.2 (Ariz. Ct. App. 1995) (recognizing “[i]t can be argued that . . . 

imputed disqualification[] does not apply to the public defender’s office,” but declining 

to reach the issue because there was no conflict necessitating withdrawal or 

disqualification); cf. Smitherman, 733 N.W.2d at 348 n.7 (finding a waiver issue moot in 

light of our ultimate conclusion). 

____________________
18

attorney for at least a short time. See Smitherman, 733 N.W.2d at 343;

Watson, 620 N.W.2d at 235; see also State v. Cook, 171 P.3d 1282, 

1290–91 (Idaho Ct. App. 2007) (stressing representation by different 

attorneys within the public defender’s office as an important factor 

mitigating any potential conflict); Brown, 31 U.S.F. L. Rev. at 17 (“The 

fact that a . . . witness was formerly represented by a different attorney 

in the same public defender office representing the accused is unlikely to 

dampen the commitment of the accused’s attorney.”).7

Further, no attorney employed in the same public defender’s office 

concurrently represented McKinley and the three witnesses listed by the 

State. Instead, the public defenders’ representations of the witnesses 

and McKinley is successive. Thus, this case is much different from 

Smith, in which two different attorneys from the same firm represented 

the defendant and a witness at the same time. See Smith, 761 N.W.2d at 

66 (noting the witness “was at that time represented by . . . Montgomery’s 

colleague” (emphasis added)). The fact there is no temporal overlap or 

attorney overlap in this case bolsters our conclusion that on this record, 

no conflict is likely to arise and McKinley’s choice of counsel should be 

given effect.

Indeed, this case is analogous in important respects to our 

decision in Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981). There, we 

said:

Taylor was the state’s principal witness. [Defense counsel] 

had represented him in a civil matter . . . a year or so before 

the trial of this case. He did not represent Taylor at the time 

of trial. This single isolated representation of Taylor on a 

7This case is also distinguishable from our recent decision in State v. Vaughan, 

859 N.W.2d 492 (Iowa 2015). In Vaughan, as in Watson and Smitherman, the same 

individual attorney concurrently represented the defendant and a witness. Id. at 495–

96.

 
19

wholly unrelated matter does not raise even a remote 

possibility of conflict. There is no showing of any probability 

of future business . . . . Neither is there anything about that 

case which suggests [defense counsel] obtained any 

privileged information which would inhibit his representation 

of [Nichol].

Id. (internal quotation marks omitted); see also Flynn, 87 F.3d at 1001 

(“The mere fact that a trial lawyer had previously represented a 

prosecution witness does not entitle a defendant to relief.”); Pippins, 661 

N.W.2d at 546 (“[The attorney]’s earlier representation of the witness, 

Hillman, was not a ‘conflict’ . . . .”). As in Nichol, we conclude on this 

record the public defenders’ prior representations of Rouse, Hickman,

and Manuel on unrelated matters raises no serious possibility of conflict 

precluding Larson and Lauber from representing McKinley.

We also find support for our conclusion in numerous cases from 

other courts in which an attorney’s colleague previously represented a 

witness and the court found no disqualifying conflict in a subsequent 

criminal case. See, e.g., United States v. Jeffers, 520 F.2d 1256, 1259–

60, 1266 (7th Cir. 1975); United States v. Reynoso, 6 F. Supp. 2d 269, 

270–71 (S.D.N.Y. 1998); Lech, 895 F. Supp. at 590; United States v. 

Judge, 625 F. Supp. 901, 902–03 (D. Haw. 1986); People v. Shari, 204 

P.3d 453, 458 (Colo. 2009); Bouie v. State, 559 So. 2d 1113, 1115 (Fla. 

1990) (per curiam); State v. Severson, 215 P.3d 414, 421, 426–27 (Idaho 

2009); State v. Hunsaker, 873 P.2d 540, 546 (Wash. Ct. App. 1994); State 

v. Anderson, 713 P.2d 145, 148 (Wash. Ct. App. 1986). These cases 

further strengthen our conclusion that Larson and Lauber can zealously 

represent McKinley at trial.

V. Conclusion.

The district court’s decision disqualifying Larson and Lauber based 

primarily on an erroneous application of provisions of the Iowa Rules of 
20

Professional Conduct constitutes an untenable ground for the court’s 

exercise of discretion. Under the relevant caselaw and our rules of 

professional conduct, the prior representations of witnesses in unrelated 

matters by other members of the public defender’s office did not present 

an actual conflict or a serious potential for conflict that justifies the order 

disqualifying Larson and Lauber and countermanding McKinley’s 

interest in continuing an attorney–client relationship.8 We reverse the 

disqualification order and remand for further proceedings.

REVERSED AND REMANDED.

All justices concur except Waterman and Mansfield, JJ., who 

concur specially.

8We emphasize that our decision is based on the present record. If upon 

remand the district court is made aware of new evidence or grounds tending to 

establish Larson and Lauber’s representations of McKinley is adversely affected by their 

former colleagues’ representation of the witnesses on unrelated matters, further 

proceedings addressing the potential conflict may be had. 

 
21

#13–1226, State v. McKinley

WATERMAN, Justice (concurring specially).

I concur with the result of the majority opinion reversing the 

district court order that disqualified the entire Des Moines adult public 

defender’s office from representing Lavelle McKinley on his murder 

charge. I agree there is no conflict or potential conflict arising from the 

fact several witnesses had previously been represented on unrelated 

charges by other public defenders in this office with screening 

procedures in place to prevent misuse of confidential information. I write 

separately because the majority misses the opportunity to settle the 

recurring legal issue: whether an individual public defender’s conflict of 

interest is automatically imputed to the entire public defender’s office. 

The answer to that question should be “no.” 

Public defenders represent most felony defendants in this state. 

Witnesses and victims often have their own criminal histories. The 

public defenders are salaried state employees and experienced trial 

lawyers who exercise individual independent judgment defending their 

clients. The district court erred by automatically imputing conflicts from 

one public defender to the entire office, including the two experienced 

attorneys McKinley wanted to retain. The automatic imputation issue 

was decided below and briefed by the State on appeal.9 We should follow 

9The State in its appellate brief argued against automatic imputation of the 

conflicts of an individual public defender to disqualify the entire office. The State 

acknowledged the split in authority in other jurisdictions and that the district court 

order disqualifying McKinley’s counsel could be reversed without deciding the 

automatic-imputation rule. The majority’s reluctance to decide the issue today is based 

in part on the appellate public defender’s failure to brief the issue or take a position in 

this case. Parties desiring a resolution to this recurring issue in future cases should 

make an appropriate record in district court and fully brief the issue there and on 

appeal. 

 
22

the well-reasoned decisions of other courts applying equivalent rules of 

professional conduct that decline to automatically impute conflicts of 

interest of an individual public defender to others in the same office. 

Specifically, we should hold that the public defender’s office is not a 

“firm” within the meaning of Iowa Rule of Professional Conduct 32:1.10 

and that public defenders are “government lawyers” within the meaning 

of Iowa Rule of Professional Conduct 32:1.11. Concerns arising from 

prior or concurrent representations by other public defenders in the 

same office can be resolved through screening procedures. 

I. Analysis. 

This issue requires analysis of the interplay between several of the 

Iowa Rules of Professional Conduct, patterned after the American Bar 

Association model rules.10 Iowa rule 32:1.7(a) prohibits an attorney from 

representing a client if doing so “involves a concurrent conflict of 

interest.” Iowa R. of Prof’l Conduct 32:1.7(a). 

A concurrent conflict exists if: 

(1) the representation of one client will be directly 

adverse to another client; or 

(2) 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, a former client, or a third 

person or by a personal interest of the lawyer. 

Id. r. 32:1.7(a)(1)–(2). Rule 32:1.9 prohibits an attorney “who has 

formerly represented a client in a matter [from] represent[ing] another 

10The Iowa Rules of Professional Conduct on conflicts of interest are identical in 

relevant part to the ABA Model Rules of Professional Conduct. Iowa Rule 32:1.7 

corresponds with ABA Model Rule 1.7; Iowa Rule 32:1.9 corresponds with ABA Rule 

1.9; Iowa Rule 32:1.10 corresponds with ABA Rule 1.10, although ABA Rule 1.10 

contains additional provisions regarding screening; and Iowa Rule 32:1.11 corresponds 

with ABA Rule 1.11. Compare Iowa Rs. of Prof’l Conduct 32:1.7, 1.9, 1.10, 1.11, with

Model Rules of Prof’l Conduct rs. 1.7, 1.9, 1.10, 1.11 (2009). 

 
23

person in the same or a substantially related matter in which that 

person’s interests are materially adverse to the interests of the former 

client.” Id. r. 32:1.9(a). The rule also provides: 

A lawyer shall not knowingly represent a person in the same 

or a substantially related matter in which a firm with which 

the lawyer was formerly associated had previously 

represented a client 

(1) whose interests are materially adverse to that 

person, and 

(2) about whom the lawyer had acquired information 

protected by [the rules of confidentiality] that is material to 

the matter . . . .

Id. r. 32:1.9(b)(1)–(2). Rule 32:1.10 is Iowa’s imputation requirement, 

providing that 

[w]hile lawyers are associated in a firm, none of them shall 

knowingly represent a client when any one of them 

practicing alone would be prohibited from doing so by rule 

32:1.7 or 32:1.9, unless the prohibition is based on a 

personal interest of the prohibited lawyer and does not 

present a significant risk of materially limiting the 

representation of the client by the remaining lawyers in the 

firm. 

Id. r. 32:1.10(a) (emphasis added). Finally, Iowa rule 32:1.11 excludes 

government lawyers from the imputation requirements of rule 32:1.10(a) 

by explicitly subjecting them only to rules 32:1.7 and 32:1.9. See id. r. 

32:1.11(d)(1) (“Except as law may otherwise expressly permit, a lawyer 

currently serving as a public officer or employee . . . is subject to rules 

32:1.7 and 32:1.9 . . . .”). 

To automatically impute the conflict of one public defender to the 

entire public defender’s office requires two determinations: (1) the public 

defender’s office is a “firm” under rule 32:1.10, and (2) a public defender 

is not “a lawyer serving as a public officer or employee” under rule 

32:1.11. Neither determination should be made here. The better-
24

reasoned decisions have rejected the automatic imputation of the 

conflicts of one public defender to the entire office. See United States v. 

Reynoso, 6 F. Supp. 2d 269, 271–72 (S.D.N.Y. 1998) (“[I]t does not make 

sense to apply to the Federal Defender Division[] the same standards for 

disqualification that would apply to a private law firm” and noting “[t]he 

American Law Institute has also recognized that imputed disqualification 

. . . should not automatically apply to public defender offices”); People v. 

Shari, 204 P.3d 453, 459 & nn.5–6 (Colo. 2009) (holding that a public 

defender’s office is not a firm under the imputation rule and that public 

defenders are government attorneys); Anderson v. Comm’r of Corr., 15 

A.3d 658, 664 (Conn. App. Ct. 2011) (holding that a public defender’s 

office is not a firm and that “the plain language of rules 1.10 and 1.11 

supports the respondent’s contention that [public defenders are 

government attorneys]”); State v. Severson, 215 P.3d 414, 426–27 (Idaho 

2009) (holding that a public defender’s office is not a firm for purposes of 

imputation and adopting a case-by-case approach); People v. Miller, 404 

N.E.2d 199, 202 (Ill. 1980) (rejecting “the notion that a public defender’s 

office is to be treated as a law firm or ‘entity’ in considering a conflict of 

interest claim”); Bartley v. Commonwealth, 400 S.W.3d 714, 719–20 (Ky. 

2013) (utilizing a case-by-case approach to determine whether a conflict 

should be imputed within the public defender’s office); State v. 

St. Dennis, 244 P.3d 292, 298 (Mont. 2010) (holding that a public 

defender’s office is not equivalent to a firm and adopting case-by-case 

approach); State v. Bell, 447 A.2d 525, 528–29 (N.J. 1982) (noting the 

differences between firms and public defender’s offices); Asch v. State, 62 

P.3d 945, 953 (Wyo. 2003) (rejecting “automatic disqualification of 

assistant public defenders” because the public defender’s office is not 

equivalent to a firm). 
25

Other courts apply an automatic-imputation rule to public 

defenders. See, e.g., Okeani v. Super. Ct., 871 P.2d 727, 729 (Ariz. Ct. 

App. 1993) (“The conflict of interest is not alleviated by the fact that 

defendant and the victim were represented by different lawyers within 

the Public Defender’s Office.”); Bouie v. State, 559 So. 2d 1113, 1115 

(Fla. 1990) (“As a general rule, a public defender’s office is the functional 

equivalent of a law firm.”); In re Formal Advisory Op. 10-1, 744 S.E.2d 

798, 799–800 (Ga. 2013) (per curiam) (concluding “that Rule 1.10(a) 

applies to a circuit public defender office as it would to a private law 

firm,” but noting imputing conflicts “imposes real costs on Georgia’s 

indigent defense system”); In re Hoang, 781 P.2d 731, 735–36 (Kan. 

1989) (noting the disqualifying conflict of one public defender was 

imputed to an entire office); Duvall v. State, 923 A.2d 81, 95 (Md. Ct. 

Spec. App. 2007) (stating that “at a minimum, each district office of the 

public defender should be treated as a private law firm for conflict of 

interest purposes”); Richards v. Clow, 702 P.2d 4, 6 (N.M. 1985) (limiting 

imputation of conflicts to public defenders within the judicial district or 

county rather than statewide); Commonwealth v. Westbrook, 400 A.2d 

160, 162 (Pa. 1979) (“[T]he Public Defenders Association of Philadelphia 

is a ‘law firm[.]’ ”); State v. Hunsaker, 873 P.2d 540, 542 (Wash. Ct. App. 

1994) (“[P]ublic defender agencies qualify as ‘law firms’ for the purposes 

of application of the [professional conduct] rules.”); see also Restatement 

(Third) of the Law Governing Lawyers § 123 cmt. d(iv), at 289 (2000) 

(explaining that the “rules on imputed conflicts and screening of [the] 

Section apply to a public-defender organization as they do to a law firm 

in private practice in a similar situation”). Significantly, only one of these 

cases acknowledged the conflicting authority in other jurisdictions. See 

Duvall, 923 A.2d at 94 (stating that “jurisdictions remain divided on the 
26

issue of how to treat public defender’s offices during a conflict of interest 

analysis”). The other cases merely cite the rules or that state’s precedent 

without analysis. 

In an unpublished opinion, our court of appeals applied the 

automatic-imputation rule: 

We have no trouble concluding that the public defender’s 

office had a conflict of interest due to their concurrent 

representation of Brown, a witness adverse to Ibarra’s 

interests, and the past representation of Wilson, the victim. 

Although Valorie Wilson and Jennifer Russell had not 

previously represented Brown or Wilson, the conflict of other 

members of the public defender’s office was imputed to 

them. See Iowa Rs. Prof’l Conduct 32:1.7 and 32:1.10. 

State v. Ibarra, No. 12–0330, 2013 WL 530558, at *8 (Iowa Ct. App. 

Feb. 13, 2013) (footnote omitted). The Ibarra court did not address Iowa 

Rule of Professional Conduct 32:1.11 or survey the decisions from other 

jurisdictions. Our court should decide the question in a precedential 

opinion.11 

Courts take different paths to the conclusion that an individual 

public defender’s conflict should not be automatically imputed to the 

entire office. Some courts arrive at this outcome by explicitly refusing to 

equate public defender’s offices to firms under ABA Model Rule 1.10 

without addressing the government lawyer issue. Others reach both 

issues. I will address each issue in turn. 

11We expressly left open the question in State v. Smitherman, 733 N.W.2d 341, 

348 & n.8 (Iowa 2007) (citing authorities concluding the automatic-imputation rule 

does not apply to public defenders or government lawyers generally). Several other 

opinions, in dicta, suggest that public defenders are subject to the same rules as private 

law firms, but those cases were discussing the former rules. See State v. Watson, 620 

N.W.2d 233, 241 (Iowa 2000) (citing Iowa Code of Prof’l Responsibility EC 4-2). 

 
27

A. The Public Defender’s Office Is Not Like a Private Law 

Firm. The comments to ABA Model Rule 1.10 (Imputation of Conflicts of 

Interest) provide that: 

For purposes of the Rules of Professional Conduct, the term 

“firm” denotes lawyers in a law partnership, professional 

corporation, sole proprietorship or other association 

authorized to practice law; or lawyers employed in a legal 

services organization or the legal department of a corporation 

or other organization. 

Ellen J. Bennett, et al., Annotated Model Rules of Professional Conduct

178 (2011) [hereinafter Bennett]. The commentators omitted public 

defender offices or any government office or agency from the enumerated 

organizations falling under the definition of “firm.” The same comment, 

with the same omission, accompanies the Iowa rule. See Iowa R. of Prof’l 

Conduct 32:1.10 cmt. 1. The ABA annotations also explain that “[a] 

government law office is also ordinarily considered a ‘firm’ for purposes of 

the ethics rules . . . , but the imputation of conflicts in government law 

offices is regulated by Rule 1.11 rather than Rule 1.10.” Bennett at 181 

(emphasis added). These comments indicate the drafters of the ABA 

Model Rules and Iowa rules never intended for public defenders to be 

subject to the automatic imputation of conflicts of interest. The betterreasoned decisions interpreting the model rules have held public 

defender’s offices are not firms for purposes of imputing conflicts. 

The Montana Supreme Court distinguished public defender’s 

offices from private law firms as follows: 

In deciding upon the approach to be taken in OPD 

[Office of Public Defender] conflict of interest cases, we 

consider among other factors the unique nature of public 

defender offices as opposed to private law firms. Unlike 

private law firms, the OPD is a not-for-profit public entity 

with a single source of clients engaged in a single type of 

legal proceeding. The OPD does not solicit clients or accept 

referrals from the public. Moreover, the attorneys are 
28

salaried employees rather than participants in the profits 

and revenue generated by a law firm. As such, their 

compensation is not driven by their success or failure. 

St. Dennis, 244 P.3d at 297–98 (citation omitted). The Wyoming 

Supreme Court elaborated on the differences between public defenders 

and lawyers in private law firms: 

[P]ublic defenders who are subject to a common supervisory 

structure within an organization ordinarily should be treated 

as independent for purposes of [imputing conflicts of 

interest]. The lawyers provide legal services, not to the 

public defender office, but to individual defendants. 

Ordinarily, the office would have no reason to give one 

defendant more vigorous representation than other 

defendants whose interests are in conflict. Thus, while 

individual defendants should be represented by separate 

members of the defender’s office, the representation of each 

defendant should not be imputed to other lawyers in an 

office where effective measures prevent communications of 

confidential client information between lawyers employed on 

behalf of individual defendants. 

Similarly, there is no financial incentive for attorneys 

in a public defender’s office to favor one client over another. 

The public defender does not receive more money if one 

client prevails and another does not. An assistant public 

defender, as a salaried government employee, simply does 

not have the financial interest in a case that is inherent in 

private practice. 

Asch, 62 P.3d at 953 (citations omitted) (internal quotation marks 

omitted). The Idaho Supreme Court reached the same conclusion: 

“[A]utomatically disqualifying a public defender where 

another attorney in the office has a conflict of interest would 

significantly hamper the ability to provide legal 

representation of indigent clients. This, together with the 

fact that such concurrent representation by public defenders 

generally will create no incentive (economic or otherwise) for 

diminished advocacy in such cases, convinces us that a 

per se rule imputing conflicts of interest to affiliated public 

defenders is inappropriate where there is no indication the 

conflict would hamper an attorney’s ability to effectively 

represent a client.” 

Severson, 215 P.3d at 426 (quoting State v. Cook, 171 P.3d 1282, 1292 

(Idaho Ct. App. 2007)). As noted above, the cases imposing an 
29

automatic-imputation rule by treating public defender offices like private 

law firms did so without analysis. 

The automatic-imputation rule also increases the burden on 

taxpayers. When an entire public defender’s office is disqualified, private 

contract attorneys must be paid at hourly rates or a distant public 

defender must be brought in with attendant travel time and expense. 

The Asch court observed: 

[I]t goes without saying that an experienced public defender 

who specializes in criminal defense is a valuable asset within 

the criminal justice system, especially to the indigent 

defendant. Furthermore, given Wyoming’s many small 

communities, with a limited number of lawyers, it could be 

difficult in many cases even to find local counsel for a 

defendant. 

[Another] reason to avoid an automatic disqualification 

rule for imputed conflicts of interest among assistant public 

defenders is fiscal. Paying outside counsel every time there 

are multiple defendants in a case would, no doubt, be quite 

an expense for the taxpayers of the state. Where there has 

been no showing of an actual conflict of interest, and thus 

no showing of prejudice to the defendants, the minimal 

benefit of a per se rule would not justify the additional 

expense. While we cannot and should not “put a price on” 

the legal representation we provide to indigent defendants, 

the judicial branch of government still has an obligation to 

be fiscally responsible. 

62 P.3d at 953–54. The same court also addressed the concern that 

substitute counsel may be less experienced and less competent: 

Another reason to adopt a case-by-case inquiry for 

conflicts of interest within the State Public Defender’s Office 

is that to do otherwise would needlessly jeopardize the right 

of individual defendants to skilled and competent 

representation. As noted by the Illinois Supreme Court, “[i]n 

many instances the application of such a per se rule would 

require the appointment of counsel with virtually no 

experience in the trial of criminal matters, thus raising, with 

justification, the question of competency of counsel.” 

Id. at 953 (quoting People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979)). 
30

These decisions are persuasive and should be followed. The 

concerns outlined by these state supreme courts are raised in the case 

before us. McKinley, facing life in prison, chose to continue with his trial 

lawyers from the Des Moines adult public defender’s office rather than 

proceeding with a lawyer from the juvenile public defender’s office. 

Moreover, in many areas of the state, disqualification of the resident 

public defender’s office requires appointment of private contract 

attorneys or public defenders located farther away and at greater 

expense. 

The best way to ensure that defendants receive conflict-free 

counsel while preventing the unnecessary disqualification of public 

defenders is by adopting a screening process sufficiently thorough to 

protect against the concerns giving rise to the imputation requirement. 

The Shari court outlined Colorado’s screening process, which the court 

found sufficient to assuage “any concerns regarding the communication 

of confidential information from the public defenders who previously 

represented the prosecution’s witnesses . . . .” 204 P.3d at 459. There is 

no reason screening policies would not work equally well in Iowa. 

B. Public Defenders Are Government Attorneys. While 

excluding public defender offices from the definition of firm under the 

Iowa Rules of Professional Conduct is sufficient to avoid automatic 

imputation, I also believe that public defenders are “lawyer[s] currently 

serving as . . . public officer[s] or employee[s]” within the meaning of Iowa 

Rule of Professional Conduct 32:1.11 and are thereby exempted from 

automatic imputation for that additional reason. Both the Colorado 

Supreme Court and the Connecticut Court of Appeals came to the same 

conclusion. Shari, 204 P.3d at 459; Anderson, 15 A.3d at 664. As the 

Shari court explained: 
31

Conflicts particular to individual lawyers within a firm can, 

in certain circumstances, be imputed to the entire firm. 

However, Rule 1.10 specifically states that [t]he 

disqualification of lawyers associated in a firm with former or 

current government lawyers is governed by Rule 1.11. Rule 

1.11, in turn, subjects government lawyers to Rules 1.7 and 

1.9. The comments to Rule 1.11 make clear that a 

government attorney’s individual conflicts are not imputed to 

the entire government agency for which he works. In 

accordance with Rule 1.11, we have recognized that a 

distinction must be drawn between an attorney in private 

practice with a traditional law firm and an attorney 

associated with a large public or governmental agency. 

204 P.3d at 459 (footnotes omitted) (citations omitted) (internal quotation 

marks omitted). Shari’s facts mirror the case before us.12 

Like Colorado, Iowa excludes from imputation “a lawyer currently 

serving as a public officer or employee.” Iowa R. Prof’l Conduct 32:1.11. 

Using the plain language of the Iowa provision, it is evident that public 

defenders are included within this definition. Public defenders are 

salaried employees paid by the state. Accordingly, a public defender is a 

“lawyer currently serving as a public . . . employee.” Compare Colo. R. of 

Prof’l Conduct 1.11, with Iowa R. of Prof’l Conduct 32:1.11(d). As such, 

they are governed by Iowa Rule of Professional Conduct 32:1.11 and 

excluded from the imputation requirements of rule 32:1.10.13 

12Shari involved a defendant charged with several counts of murder who had 

been assigned two defense attorneys from the public defender’s office. 204 P.3d at 455. 

After a date for the initial hearing was set, “the People filed a motion for conflict-free 

counsel,” alleging “that the entire Office of the State Public Defender . . . should be 

disqualified from representing [the defendant] because of the Office’s prior 

representation of the People’s three primary witnesses against [the defendant].” Id. 

Although the trial court “recognized that neither [of the attorneys] was individually 

involved in any of the three witnesses’ cases,” the court nonetheless disqualified the 

attorneys “because other attorneys within the Public Defender’s Office had represented 

the witnesses.” Id. at 455–56. 

13The comments to the rule support this interpretation. Iowa R. of Prof’l 

Conduct 32:1.11 cmt. [2] (“Because of the special problems raised by imputation within 

a government agency, paragraph (d) does not impute the conflicts of a lawyer currently 

serving as an officer or employee of the government to other associated government 

officers or employees, although ordinarily it would be prudent to screen such lawyers.”); 

Model Rule of Prof’l Conduct r. 1.11 cmt. [2] (same). 

 
32

It is disappointing the majority today fails to take the opportunity 

to settle this recurring legal question. Until the automatic-imputation 

issue is resolved by court decision or rule amendment, our trial courts 

will continue to struggle case by case with public defender intraoffice 

conflicts. Sadly, unnecessary disqualifications will continue. The 

practical consequences often will be increased taxpayer expense and 

defendants who proceed with substitute counsel instead of counsel of 

their choice. 

Mansfield, J., joins this special concurrence.