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409.01000 – Business Necessity

A Public Defender has a legitimate reason to exclude DDAs from investigatory meetings, at least where the Public Defender’s client confidential information or Public Defender work product is likely to be revealed. It may also be justified in preventing such cross-representation where the representing DDA is the opposing counsel to the DPD in a criminal case, or in other situations in which the rules of professional responsibility or rules of court require that the representation be disclosed to the Public Defender’s client, and/or that either attorney would be forced to disqualify himself or herself from further representation in the criminal case. Internal office procedures for documenting attorney work do not fall within the definition of attorney “work product.” Although the Public Defender had no power over whom the Association appointed as stewards or representatives, or over the fact that the Association had not appointed any DPDs as labor representatives, and although the cross-representation ban was occasioned by circumstances beyond the employer’s control, the Public Defender had the alternative of declining to proceed with the interview and continue its investigation by other means, or redacting sensitive information from materials involved in the investigatory interview. A Public Defender may not seek to secure for itself the benefits of an investigatory interview with an employee suspected of wrongdoing by compelling the employee’s attendance at the interview, while it denies the employee and the Association their respective representation rights, including the employee’s right to decline to be interviewed without threat of insubordination.