Request By:
Ms. Ginger C. Knight
Hays and Hays
56-58 South Main Street
Winchester, Kentucky 40391
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
We understand that your county chose permissively to arrange with the courts of criminal jurisdiction in your county to assign attorneys in the defense role, pursuant to KRS 31. 160(1)(c). You have an additional question concerning the public advocacy program.
"If, as a result of a county's refusal to establish its own plan for the representation of indigents, a county is being represented by a state paid public defender, who is paid totally by the state without any assistance or contribution by the county, may the district and circuit courts appoint local attorneys to represent indigent defendants in conflict cases and if so, is the county fiscal court responsible for an attorney fee in the court orders that a fee be paid?"
We assume you are saying that suppose the county decides, at the end of a one-year period of public advocacy commitment, to not commit itself to any public advocacy program, as envisioned in KRS 31.160.
Under such facts, the state would have to provide a district public advocate as provided in KRS Chapter 31. KRS 31.160(1)(e). Thus under KRS 31.065, the public advocate may establish in your county (which has less than ten (10) circuit judges) an office of district public advocate, which shall be staffed by a district public advocate who shall be an attorney, or may establish an assigned counsel plan as described in KRS 31.160(1)(c).
Assuming that the public advocate establishes an office of district public advocate in your county, your question is who would pay any attorneys appointed by the court to defend indigents in conflict cases (where the court does not want the public advocate to represent more than one defendant in the same case).
RCr 8.30 requires separate counsel except when waived by the defendant. White v. Com., Ky., 671 S.W.2d 241 (1984). See the rule for special requirements relating to multiple representation. However, we believe that the courts, under their general judicial jurisdiction, in a case involving two or more defendants in the same case, may in the interest of justice appoint another attorney or attorneys to represent such multiple indigent defendants other than the defendant being represented by the public advocate. We do not believe that the public advocacy policies of KRS Chapter 31 can negate the authority of the trial judge in this particular. The court wrote in Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), that as relates to the relationship of the public advocate to the court of justice, the position of the public advocate is no more and no less than that of any other lawyer practicing before it. Thus the court's authority to make court attorney appointments to represent indigents in order to circumvent conflicts of interest in the mind of the court should remain inviolate. RCr 3.05(2) affords the courts flexibility in the appointment of counsel for an indigent defendant. The courts must be able to invoke their judicial appraisal as to adequate representation of an indigent defendant. When an accused has the means to employ counsel, the Sixth Amendment right to counsel embraces not only the assistance of counsel but also the reasonable opportunity to secure counsel of one's own choice. Once counsel has been retained, the court may not unreasonably interfere with the accused's choice of counsel. Harling v. United States, (App. DC) 387 A.2d 1101; and 3 ALR 4th 1218. Thus if the Kentucky judge decides to appoint a defending counsel for an indigent, other than the district public advocate, he may do so, unfettered by the Sixth Amendment. It has been generally recognized that while an indigent's preference for a particular attorney may be considered by the court, he does not have an unqualified right to appointed counsel of his own choosing. United States v. Hampton, 457 F.2d 299 (7th Cir.), cert. denied, 409 U.S. 856, 93 S. Ct. 136, 34 L. Ed. 2d 101 (1972); and Tibett v. Hand, 294 F.2d 68 (10th Cir. 1961).
Futhermore, once counsel has been selected for an indigent defendant, substitution of that counsel upon request of either the defendant or the attorney rests in the sound discretion of the court. Thornton v. United States, D.C. App., 357 A.2d 429, cert. denied, 429 U.S. 1024, 97 S. Ct. 644, 50 L. Ed. 2d 626 (1976).
Your final question is whether the fiscal court of your county can be required to pay the counsel fees, which counsel are appointed by the court to avoid conflict of interest in representation.
We are not aware of any statute that would require the county to so fund it. Here we are speaking of a situation in which the county has not formally committed itself to a public advocacy program under KRS Chapter 31. Cf. KRS 31.160. We assume that your county is not one of those counties wherein the judicial district is required to maintain a public advocate under Chapter 31. See KRS 31.160(1).