The Alaska Supreme Court

After the unanticipated resignation of an assistant public defender, the Public Defender Agency proposed a plan to temporarily assign other attorneys to her cases until a permanent replacement was hired. The superior court rejected the Agency’s plan because no specific attorney would be assigned to the cases or prepare them for trial. It ordered the Agency to advise affected clients that if they wished to remain represented by the Agency, they would have to waive their rights to effective assistance of counsel until an attorney was permanently assigned to their cases, and if they did not waive their rights, the Agency would withdraw.

The Agency was able to assign specific attorneys for all but one client’s case. It withdrew from that case as ordered by the superior court. The court then appointed the Office of Public Advocacy (OPA) to represent that client. OPA moved to withdraw. It argued that its appointment to the case was not authorized under AS 44.21.410 because the Agency’s lack of capacity to take on additional cases was not a conflict of interest under that statute and that the superior court had exceeded its authority by rejecting the Agency’s proposed plan to cover the affected cases. The superior court denied the motion to withdraw.

OPA eventually filed an original application for relief with the court of appeals challenging its appointment. The court of appeals certified the original  application to this court and asked us to accept transfer of jurisdiction, which we granted.

We issued an order continuing OPA’s appointment, stating that a written opinion explaining the order would follow. We now explain that the superior court did not err by intervening in the affected cases; lack of capacity can amount to a conflict of interest; and when the Agency has a conflict due to its lack of capacity to take cases, AS 44.21.410(a)(4) requires that OPA be assigned.