Graves v. State

BISHOP, Judge. For the first time we are confronted with the issue of whether, for conflict of interest purposes, the Public Defenders’s Office is to be held to the same standards as a private law firm. Appellant, Michael Graves (Graves), was charged with assaulting Derek Jones (Derek), assaulting David Jones (David), and attempted robbery with a dangerous and deadly weapon. Graves pleaded not guilty and prayed a jury trial in the Circuit Court for Baltimore City.

The jury was sworn on October 15, 1991, and on October 16th the trial ⁶⁵⁵ court denied Graves’s motion to suppress and motion for mistrial. The jury convicted Graves of both assault charges and acquitted him of attempted robbery. On November 22, 1991, Graves was sentenced to ten years, all suspended, for assaulting Derek; ten years consecutive, all except five years suspended, for assaulting David; and five years probation. Issues Graves presents six issues, which we restate as follows: I. Did the trial court err by denying Appellant’s motion to strike the appearance of the Office of the Public Defender due to a conflict of interest?

II

Did the trial court err by instructing the jury that unanimity was required in order to find Appellant not guilty?

III

Did the trial court err by not instructing the jury that Appellant could be found not guilty?

IV

Did the trial court err by allowing Officer Reynolds’ oral and written hearsay testimony? V. Did the trial court err by denying Appellant’s motion to suppress the extrajudicial identification of Appellant by photographic array?

VI

Was the evidence sufficient to sustain Appellant’s convictions? Facts On May 28, 1991, Derek left his house at 6:15 a.m. to go to work. Derek noticed two men walk past him as he sat waiting for a bus. About two minutes later, the men returned and stood in front of him.

One of the men, whom Derek later identified as Graves, pulled out a gun and said, “Don’t move.” At that moment, Derek saw his father, David, crossing the street. David testified that, upon seeing his son and sensing that something was not right, he crossed the street toward Derek and “asked what the trouble was.” When the man holding the gun looked at David, Derek pushed the gun and ran down the street. ⁶⁵⁶ The police arrived at Derek’s house three to five minutes later, and drove Derek through the neighborhood looking for the suspects. Derek told the police that one man wore light blue shorts, and the man with the gun wore red shorts and a white shirt. Later that morning the police arrested Kenneth Trusty (Trusty), who told the police that Graves was his accomplice.

Derek identified Trusty as one of the men. From a photo array displayed to him by the police, Derek identified Graves’s photo as that of the gunman. At trial, Derek and David identified Graves as the gunman. Discussion I. Conflict of Interest In the case sub judice, Graves contends that he was denied his constitutional right of effective assistance of counsel because of a conflict of interest.

Specifically, he argues that the trial court erred when it refused to grant his motion for mistrial and refused to strike the appearance of the Office of the Public Defender. The conflict of interest arose, according to Graves, when he was represented by an assistant public defender at the same time another assistant public defender represented co-defendant Trusty. The record is incomplete with regard to Trusty’s case. The right to counsel, under the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, includes the right to be represented by counsel who is free from conflicts of interest.

Wood v. Georgia, 450 U.S. 261, 271 , 101 S.Ct. 1097, 1103 , 67 L.Ed.2d 220 (1981); Austin v. State, 327 Md. 375 , 609 A.2d 728 (1992); Pressley v. State, 220 Md. 558 , 155 A.2d 494 (1959); Kent v. State, 11 Md.App. 293 , 273 A.2d 819 (1971); see also State v. Tichnell, 306 Md. 428, 440 , 509 A.2d 1179 , cert. denied, 479 U.S. 995 , 107 S.Ct. 598 , 93 L.Ed.2d 598 (1986) (no distinction between right guaranteed under federal constitution and the right to counsel ensured by Article 21). ⁶⁵⁷ To establish a violation of the constitutional right, “a defendant ‘must establish that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Austin, 327 Md. at 381 , 609 A.2d 728 ; (citing Cuyler v. Sullivan, 446 U.S. 335, 350 , 100 S.Ct. 1708, 1719 , 64 L.Ed.2d 333 (1980)); Pressley, 220 Md. at 562 , 155 A.2d 494 . The Supreme Court determined in Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052, 2067 , 80 L.Ed.2d 674 (1984), that “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” The Supreme Court stated that [i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance.

Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent. One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345, 350 , 100 S.Ct., at 1716-1719 , the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest.

In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is ⁶⁵⁸ not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above.

Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. at 692-93, 104 S.Ct. at 2067 (citations omitted) (emphasis added). In Brown v. State, 10 Md.App. 215, 221 , 269 A.2d 96 (1970), this Court set out general guidelines to determine whether an actual or imminent conflict of interest exists. Within the facts of an individual case, it is proper to consider the complexity of both the law and the facts since the more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest.

Conversely, if the law is simple and the evidence of guilt strong, the opportunity for conflict of interest may be lessened. Of course, the contention may still be found to be an unsupported allegation ... or to have been waived at trial,____ (Citations omitted). Representation of multiple defendants in a criminal case, by the same attorney or law partners, is not per se an actual conflict of interest. Austin, 327 Md. at 386 , 609 A.2d 728 (citing Cuyler v. Sullivan, 446 U.S. at 348 , 100 S.Ct. at 1718 ).

The potential, however, for a conflict of interest is present. See Rules of Professional Conduct, 1.7-10. Generally, an actual conflict of interest exists when “an attorney, or law partners, represent in the same criminal case both the defendant and a codefendant (or other individual) who testifies adversely to the defendant.” Austin, 327 Md. at 387 , 609 A.2d 728 ; Kent, 11 Md.App. at 298 , 273 ⁶⁵⁹ A.2d 819 (“certain factual situations contain ingredients which inherently tend to create conflict of interest problems ____ ‘[T]hose cases in which one attorney was simultaneously representing the defendant and a prosecution witness against the defendant, who was usually under indictment or awaiting sentence.’ ”). The United States Court of Appeals for the Seventh Circuit explained in Ross v. Heyne, 638 F.2d 979 (7th Cir.1980), that [a]n actual conflict would arise where defense counsel is unable to cross-examine a prosecution witness effectively because the attorney also represented the witness.

The problem that arises when one attorney represents both the defendant and the prosecution witness is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination, but which he refuses to use for fear of breaching his ethical obligation to maintain the confidences of his client. ‘The more difficult problem which may arise is the danger that counsel may overcompensate and fail to cross-examine fully for fear of misusing his confidential information.’ A conflict of interest would also exist where one attorney represents co-defendants, and one defendant agrees to provide evidence against the other in return for an advantageous plea bargain. 638 F.2d at 983 (citations omitted) (quoting United States v. Jeffers, 520 F.2d 1256, 1265 (7th Cir.1975), cert. denied, 423 U.S. 1066 , 96 S.Ct. 805 , 46 L.Ed.2d 656 (1976)) (cited in Austin, 327 Md. at 387 , 609 A.2d 728 ); see also Kent, 11 Md.App. at 299 , 273 A.2d 819 (prejudice to the accused, although slight, must be shown before such a conflict of interest will be deemed harmful error). Representation of co-defendants by members of a single law firm is treated the same, for purposes of conflict of interest analysis, as representation of co-defendants by one attorney. Austin, 327 Md. at 390 , 609 A.2d 728 . In dicta, the Court stated that “[w]ith regard to public defender offices, there appears to be some disagreement among ⁶⁶⁰ the cases as to whether, and to what extent, a public defender’s office is to be viewed like a single private law firm for purposes of applying conflict of interest principles.” Id. at 10 n. 3.

Before addressing the merits of Graves’s argument, we are presented with the question whether, for purposes of conflict of interest analysis, to treat the representation of co-defendants by assistant public defenders the same as representation of co-defendants by one attorney, or a single law firm. It is clear that, under Austin and Brown , a conflict of interest would exist whenever private attorneys within the same firm simultaneously represent co-defendants, who are both either under indictment or awaiting sentence, when one co-defendant testifies against the other. Courts disagree whether to extend this per se rule to the public defender’s office. In Allen v. District Court, 184 Colo. 202 , 519 P.2d 351 (1974), the public defender’s office was assigned to represent a criminal defendant who provided crucial evidence against another individual represented by the public defender’s office.

The trial court denied the public defender’s motion to withdraw, without a hearing to determine whether there was a conflict of interest. The appellate court held that a hearing should have been held. Whenever a motion to withdraw is filed on the grounds that a conflict of interest may exist or may arise in the future, the trial judge must conduct a hearing to determine if a conflict of interest, or a potential conflict of interest, requires that counsel withdraw. If, from the facts presented at the hearing, it appears that a substantial conflict of interest exists, or will in all probability arise in the course of counsel’s representation, the motion to withdraw should be granted.

Id. at 353. The court reasoned that all lawyers are ethically obligated to refrain from representing multiple clients if representation of a client will adversely affect another client. The ⁶⁶¹ court stated it is “of the utmost importance that an attorney’s loyalty to his client not be diminished, fettered, or threatened in any manner by his loyalty to another client.” Id.; see Rodriguez v. District Court, 719 P.2d 699, 704 (Colo.1986) (Confidential information obtained by the assistant public defender for the defendant must be imputed to other members of the public defender’s office.); see also Espinoza v. Rogers, 470 F.2d 1174, 1175 (10th Cir.1972) (A federal civil rights action wherein the Court stated that a “Colorado Public Defender’s professional duties and responsibilities toward his clients are identical in all respects to any other Colorado attorney whether privately retained or court-appointed.”); cf. People v. Superior Court, 94 Cal.App.3d 626 , 629 n. 3, 156 Cal.Rptr. 487 (1979) (Although this case involved a law firm acting as public defender, the court stated “[n]othing before us indicates that the public defender has a financial interest in continuing to represent both real parties.”). Florida’s appellate court expressly stated in Turner v. State, 340 So.2d 132, 133 (Fla.Dist.Ct.App.1976), that a public defender’s office within a given circuit is the same as a “firm” for conflict of interest purposes and an assistant public defender may not represent a defendant if that representation will adversely affect another defendant.

In Babb v. Edwards, 400 So.2d 1239 (Fla.Dist.Ct.App.1981), an assistant public defender certified to the trial court that representation of Babb conflicted with representation of another defendant. The trial court found, however, that the two assistant public defenders maintained separate offices in separate counties, and there was no danger that confidential information transferred between them. Citing Turner , the appellate court held that assistant public defenders are like members of a firm, but where the public defender’s office is separate and the exchange of confidential information can be avoided, then public defenders are not analogous to a law firm. Id., 400 So.2d at 1240 .

The court stated that a public defender is required ⁶⁶² to do more than merely ascertain that there is hostility or adversity between defendants represented by his office before filing a motion to withdraw; it is also his duty to ascertain, as a condition precedent to the filing of that motion, that counseling of such defendants by different members of the staff cannot be done “without conflict of interest”____ If attorneys employed by the same public defender are not equated, for purposes of considering conflicts of interest, with private attorneys associated in the same law firm, then the factors ... relating to the protection of confidential information by separation of offices, facilities and personnel must be weighed by the public defender in the filing of a motion to withdraw. Id. at 1241 (footnote omitted). Additionally, the court required trial courts to weigh such factors in deciding whether to grant or deny a motion to withdraw. Id.; see Monson v. State, 443 So.2d 1061, 1062 (Fla.Dist.Ct.App.1984) (when both public defenders were from the same circuit, the defendant was entitled to an evidentiary hearing to determine whether he was denied effective assistance of counsel due to a conflict of interest).

The Supreme Court of Pennsylvania, in Commonwealth v. Via, 455 Pa. 373 , 316 A.2d 895, 898 (1974), held that the petitioner did not waive the failure to assert incompetency of trial counsel in a post-conviction proceeding in which the petitioner was assigned counsel who was a member of the same public defender’s office which represented him at trial. The rationale underlying that court’s decision was that “[t]he law will not assume that counsel has advised his client of his inadequacies or those of his associates.” Id. Later, in Commonwealth v. Westbrook, 484 Pa. 534 , 400 A.2d 160, 162 (1979), the court stated that the public defender’s office is a “law firm” and that two members of the same firm are prohibited from representing multiple clients with inconsistent defenses. In Westbrook , the defendant, charged with robbery, claimed that his brother committed the crime.

At the preliminary hearing, the defendant and his brother were ⁶⁶³ jointly represented by members of the Public Defenders Association of Philadelphia, and the brother’s public defender advised him not to testify at the defendant’s trial. In an earlier decision, Commonwealth v. Breaker, 456 Pa. 341 , 318 A.2d 354 (1974), the court summarized the law on conflicts of interest. Our dual representation cases make several principles clear. First, “[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results.

The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion.” Second, a defendant must demonstrate that a conflict of interest actually existed at trial, because “dual representation alone does not amount to a conflict of interest.” Third, “[t]o make the dual representation rise to true conflict, appellant need not show that actual harm resulted, ... but he must at least show the possibility of harm____” Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, “that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.” Breaker, 318 A.2d at 356 (citations omitted) (emphasis in original); see Westbrook, 400 A.2d at 162 . The Superior Court of Pennsylvania concluded that “ ‘[t]he only harm resulting from the alleged conflict took place long prior to appellant’s trial and on the facts, no conflict existed at trial and thus no possible threat to appellant’s interests was present.’ ” Westbrook, 400 A.2d at 162 . The Supreme Court disagreed and concluded that “the existence of dual representation and the possible conflict of interest does not depend upon when the possible conflicting representation is performed (trial or pretrial), but rather that advice adverse to a client’s interest was given.” Id. at 163. ⁶⁶⁴ In Commonwealth v. Green, 379 Pa.Super. 602 , 550 A.2d 1011, 1012 (1988), one co-defendant was acquitted and the other pleaded guilty in exchange for his testimony that the defendant participated in the burglary. The trial court ordered a new trial on the basis of a conflict of interest.

The Commonwealth appealed arguing that members of the public defender’s office work independently and, therefore, are not members of the same firm. The court rejected the Commonwealth’s argument and concluded that a public defender’s office is, “by its very nature, a law firm.” Id. at 1013; see Commonwealth v. Evans, 306 Pa.Super. 25 , 451 A.2d 1373 (1982) (Trial court erred when it denied motion to withdraw where co-defendants were each represented by assistant public defenders within the same county. A dissenting judge stated that the holding of Cuyler, 446 U.S, at 335, 100 S.Ct. at 1708 , which only requires proof of actual harm, as opposed to potential harm, to establish a conflict of interest, should be adopted). The Supreme Court of Utah determined in State v. Smith, 621 P.2d 697 (Utah 1980), that members of the same public defender’s office may not represent defendants with conflicting interests as there is a strong likelihood that both have been privy to the confidences of the co-defendants.

The court remanded the case for a new trial because there was no showing in the record that the defendant was advised of any conflict of interest. Courts have held in other states that a public defender’s office is not, per se, like a private law firm for conflict of interest purposes. In State v. Bell, 90 N.J. 163 , 447 A.2d 525 (1982), the court refused to extend the presumption of prejudice to multiple representation by public defenders. In an earlier decision, State v. Bellucci, 81 N.J. 531 , 410 A.2d 666 (1980), the court held that it is an improper conflict for a private attorney to represent one defendant while a partner or associate represents a co-defendant.

There is ready access to confidential information among members of a law firm. The close association of members heightens the risk of even inadvertent disclosure. ⁶⁶⁵ Each partner’s professional knowledge is justifiably imputed to the entire firm, regardless of actual disclosure. The shared economic interest of the entire firm in the clients of individual members also supports treating a partnership as one attorney. A financial stake in the outcome of a case is itself a source of conflict.

Perhaps most importantly, public confidence in the integrity of the bar would be eroded if conduct proscribed for one lawyer could be performed by his partner. 410 A.2d at 671 (citations omitted). In Bell , the court determined that public defenders are unlike private firms since they have no financial interest in their clients. 447 A.2d at 528 . “Because ‘the primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State,’ we can expect the public defenders to withdraw from the case whenever joint representation may prejudice their clients.” Id. (citation omitted). Although the Bell court refused to adopt a per se rule, it required trial courts to determine whether a significant likelihood of prejudice existed. [Sjhould the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice, the presumption of both an actual conflict of interest and actual prejudice will arise, without the necessity of proving such prejudice.

We must therefore consider the record in this case to see if there was a significant likelihood of prejudice. We find there was not. Id. at 529 (citations and footnote omitted). The dissent in this case urged that the Bellucci ruling as to private law firms should apply to public defenders from the same office to assure defendants their “fundamental right to independent counsel.” Id. 447 A.2d at 537 .

In People v. Wilkins, 28 N.Y.2d 53 , 320 N.Y.S.2d 8 , 268 N.E.2d 756 (1971), the Legal Aid Society, as attorney of record, represented the defendant and the complaining witness at the defendant’s trial. The court refused to extend the rule — that knowledge of one member of a law firm will ⁶⁶⁶ be imputed by inference to all members of the law firm — to members of the Society. The court reasoned that, unlike a private law firm, confidential information does not flow freely within the office because it is so large (four branches, three units, and about 150 lawyers). Illinois established a rule requiring a case-by-case inquiry by the trial court to determine if a conflict of interest exists, and the extent of any conflict.

In People v. Robinson, 79 Ill.2d 147 , 37 Ill.Dec. 267 , 402 N.E.2d 157, 161 (Ill.1979), the court refused to conclude that a public defender’s office is a “firm.” The court determined that “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. 37 Ill.Dec. at 272, 402 N.E.2d at 162 . Accordingly, “ ‘the inbred adversary tendencies of the lawyers are sufficient protection’ ” from the presence of inadequate representation by separate members of the public defender’s office. Id. (quoting ABA Standards, The Defense Function, Commentary, at 212-13 (1971)); see also People v. Terry, 46 Ill.2d 75 , 262 N.E.2d 923 (1970); People v. Smith, 37 Ill.2d 622 , 230 N.E.2d 169 (1967) (conflict of interest exists when a public defender represents a defendant in a post-conviction hearing based on charges of incompetent counsel afforded the defendant at trial by another public defender because of the public defender’s competing loyalties between the office and defendant).

In People v. Puckett, 70 Ill.App.3d 743 , 27 Ill.Dec. 244 , 388 N.E.2d 1293 (1979), however, the court refused to hold that a public defender’s office is the same as a law firm because the office in that case was decentralized (public defenders worked part-time and had private practices). The court explained that the case was unlike Terry and Smith because those cases involved centralized offices in which there was one public defender and several assistants who shared office space and functioned like a law firm. The court noted that the hearing conducted by the trial court on remand was exhaustive. Based on the evidence, the trial ⁶⁶⁷ court concluded that no conflict existed because there “[was] no common interest between the two individual practitioners other than that they [were] both lawyers, that they both [held] the title of Public Defender, they [were] both appointed by the court, and they [were] both paid by Adams County.” Id. 27 Ill.Dec. at 247 , 388 N.E.2d at 1296 .

People v. Miller, 79 Ill.2d 454 , 38 Ill.Dec. 775, 779 , 404 N.E.2d 199, 203 (1980), requires a case-by-case inquiry “whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office.” See People v. Banks, 121 Ill.2d 36 , 117 Ill.Dec. 266, 269 , 520 N.E.2d 617, 620 (1987) (The court explained that, unlike Smith, it is precisely because an assistant public defender’s loyalty to his office is not as great as attorneys working for private law firms that it refused in Robinson to adopt a per se rule.); see also People v. Wilkerson, 123 Ill.App.3d 527 , 79 Ill.Dec. 1, 5 , 463 N.E.2d 139, 143 (1984); People v. Nelson, 82 Ill.2d 67 , 44 Ill.Dec. 292 , 411 N.E.2d 261 (Ill.1980). For the reasons discussed infra, we do not adopt a per se rule that a public defender’s office is the same as a private law firm for conflict of interest purposes. We are not persuaded with the view that the public defender’s office is, “by its very nature, a law firm.” Green, 550 A.2d at 1013 . Accordingly, an actual (or inherent) conflict of interest does not per se exist when assistant public defenders represent co-defendants (or other individuals) with inconsistent defenses.

Although we do not adopt a per se rule, we regard the loyalty of each Maryland lawyer to a client to be of the “utmost importance,” which is not to be “diminished, fettered, or threatened in any manner by his loyalty to another client.” Allen, 519 P.2d at 353 . Disqualification of all members of the public defender’s office where a conflict of interest exists will not result in the appointment of incompetent counsel, as the Court indicated in Robinson, 37 Ill.Dec. at 272, 402 N.E.2d at 162 . We recognize that the Maryland Rules of Professional ⁶⁶⁸ Conduct do not include the “public defender’s office” specifically within its definition of a “firm.” Md.Rules of Professional Conduct, Terminology, (“firm” refers to lawyers in a private firm, lawyers employed in the legal department of a corporation or organization, or in a legal services organization); see also id. Rule 1.10, cmt.

(lawyers employed in the same unit of a legal service organization refers to representatives of legal aid). Regardless, all members of the Maryland Bar are ethically obligated to represent clients competently. Id. Rule 1.1.

Moreover, we reject the premise that private firms differ from public defender’s offices on the basis of a law firm’s economic stake in the outcome of a case. See Bell, 447 A.2d at 528 ; Superior Court, 94 Cal.App.3d at 629, n. 3 , 156 Cal.Rptr. 487 . Public confidence in the integrity of the legal profession will surely erode if the predominant motivation for an attorney, public or private, to represent a client competently and ethically, is based on the fee earned, or the lack thereof. Furthermore, our refusal to adopt a per se rule is not based on the idea that public defenders are any less loyal to their office than private attorneys.

See Smith, 230 N.E.2d at 169 . We simply cannot compare the degree of loyalty one public defender has toward the office as opposed to that which a private attorney has to his office. Thus, we are not persuaded with the view of courts holding that at no time will a public defender’s office be viewed as a law firm. Circumstances may justify a trial court’s determining that confidential information obtained by assistant public defenders must be imputed to other members of the public defender’s office.

See Allen, 519 P.2d at 353 ; Babb, 400 So.2d at 1240 ; Westbrook, 400 A.2d at 163 ; Bell, 447 A.2d at 529 . Article 27A, § 8 of the Annotated Code of Maryland (1990) provides: ⁶⁶⁹ Privileged communications. All communications between the individual defendant and any person in or engaged by the Public Defender shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel had been privately engaged____ The Babb Court had before it § 27.53(3), Florida Statutes (Supp.1980) which provided: If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to certify such fact to the court, and the court shall appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender, to represent those accused. [Emphasis added]. The statute codifies for Florida what we believe is clearly the law of Maryland; therefore, we adopt from Babb the following for the guidance of the Public Defender’s office when faced with a conflict of interest: [T]hat attorneys employed by a public defender who are required to “practice their profession side by side, literally and figuratively” are members of a “firm” for purposes of the rule____ [W]here the practice of each attorney is so separated from the other’s that the interchange of confidential information can be