concurring specially.
“Applied to the case before us, the Constitution prohibits a legislator from representing a client, for his own financial gain, in any *487civil transaction or matter wherein the State of Georgia shall be an opposing party.
“Nor are the proscriptions of the law confined to legislators who are lawyers. They extend to every public officer. ” Ga. Dept. of Human Resources v. Sistrunk, 249 Ga. 543, 547 (291 SE2d 524) (1982). (Emphasis supplied.)
I concur specially because although I agree with the result reached by the majority, I believe that today’s opinion cannot be squared with the clear language of our recent decision in Sistrunk. At the time of Hudson’s trial, his appointed counsel was serving simultaneously as the Probate Judge and Solicitor of the State Court of Treutlen County. I take it that no one would challenge the fact that he was twice over a “public officer.” Nor can it seriously be contended that Sistrunk applies only in civil cases. A criminal trial is certainly a “matter wherein the State of Georgia shall be an opposing party” as stated in Sistrunk. Id.
The majority’s attempt to distinguish Sistrunk, see n. 5 supra, is unpersuasive. Characterizing the defendant’s claim as an “ineffective assistance” issue rather than a “public trust” issue begs the real question in this case. Sistrunk applies here inasmuch as the State of Georgia is “an opposing party.” By placing his client’s interests in potential conflict with his duties as a “public official,” the attorney here has “violated the trust” of either the state or his client. In my view this case points out the principal weakness of our decision in Sistrunk: the “public trust” theory used there is so broad and amorphous as to be unworkable. A better approach would have been to decide Sistrunk on standard conflict of interest grounds, then proceed on a case-by-case basis. However, this court chose not to do so, and we are bound by the course set in Sistrunk.
In my view there are only two workable constructions of our holding in Sistrunk. The rule in Sistrunk either applies to “every public officer,” as the decision plainly states, or it was aimed at the legislature only. Our holding there was based on, Georgia Constitutional law. That holding cannot, consistent with the principle of stare decisis, be trimmed, hedged, or just plain ignored by this court in this case and future cases. I concur in today’s judgment (see 249 Ga. 543, 552 (Smith, J., dissenting)), but I think we should either abide by the plain language of Sistrunk, overrule it, or admit that the decision was aimed solely at the legislative branch of government.