Monday, January 11, 2010

How to Be a Public Defender Revolutionary, Part I

Step I: Read these two ABA Publications:

ABA Formal Opinion 06-441 (Ethical Obligations of Lawyers who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation)


ABA Eight Guidelines of Public Defense Related to Excessive Workloads

"If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients."

--ABA Formal Opinion 06-441 (2006) Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation

We have the power to stop excessive caseloads. We have this power because two reports—the ABA’s 2006 Formal Opinion 06-441, Relating to Excessive Caseloads and its 2009 follow-up: Eight Guidelines of Public Defense Related to Excessive Workloads—give us the authority and ammunition to end the wide-spread reality of untenable caseloads. These publications provide that public defenders have the right and the duty to decline new clients when caseloads are unreasonable. As with our clients, though, our rights won’t do us much good if we don’t use them.

When I first read Formal Opinion 06-441, my impression was that the ABA was putting both the blame and the responsibility for public defender reform on the street-level public defenders. I mean, really: We went into this career as na├»ve law graduates hoping to work for human benefit rather than money; we were thrown into court without resources or training with our clients’ freedom at stake; and then those of us who didn’t drown, and even thrived in the battle, got beaten down by judges who abused us for doing our jobs and bosses who saw it as more important to appease those in power than support his lawyers. Oh wait. That was me.

When I stopped feeling sorry for myself, I realized: forget about being pissed, maybe the ABA gave us this this tool because nothing else is working to control caseloads. And regardless of the ABA's motivation in preparing this opinion--it is a thing of beauty (but OMG could you give it a better name, please?) as it provides the duty and methodology to refuse excessive cases, and even to go over the head of supervisors and directors, if necessary.

Defenders in crisis have begun using the opinion as a basis to refuse cases in several states. A December 22, 2009 NPR report noted that attorneys may be cleared to stop accepting cases:
“This month, the Missouri Supreme Court acknowledged those concerns and urged public defenders to work with prosecutors and judges to rein in the number of cases going to trial. But if that fails, the court said public defenders have the right to refuse more defendants, though no one really knows what would happen next. Public defenders in Florida, Kentucky and Tennessee have asked for similar relief."
Assuming the "prosecutors and judges" (!) aren't able to solve the problem, the Missouri Defenders will begin, if they haven't already, declining cases, which is what should be happening in many states and counties. According to David Carroll, Director of Research, National Legal Aid and Defender Association: “There really is sort of a burgeoning movement for public defenders to stand up and just say no.”

Tomorrow: How to Be a Public Defender Revolutionary, Part II


Lee said...

I don't see this as a tool for us trench lawyers. I think this allows THE Public Defender to refuse cases based on excessive caseloads, but not individual deputies. I am lucky enough to work in a place where THE PD is very sensitive to caseloads and has used the threat of case refusal to protect our budget with the Board of Supervisors.

If I ever felt my caseload was becoming unmanageable, which I don't, I think I would address it with my supervisor, but ultimately if they didn't give permission to refuse a case, I think the call I'd have to make is whether I wanted to work harder or quit the office to protect my bar card.

You feel that you, individually, can refuse cases if you feel your caseload is too high based on this opinion?

carol d said...

Hey Lee,

I agree that PD Bosses have a duty to ensure that their attorneys have manageable and ethical caseloads, as discussed in the 8 guidelines (and see ACCD ethics opinion regarding the duty of chief defenders to refuse excess caseloads (sidebar)).

However, the ABA formal opinion 06-441 and the 8 Guidelines refer to the Rules of Professional Conduct, which govern the conduct of individual lawyers, including PDs. In fact, the new opinion mostly clarifies that PDs do not get to use the fact of being overburdened to excuse ineffective assistance. As always, though, a lawyer may rely on a supervisor's opinion when it is a subject of legitimate debate, but when the supervisor's opinion is unreasonable, the lawyer must take action to reduce the cases or refuse additional cases, even if the supervisor disagrees.

So, yes, absolutely, I think the opinion authorized PDs to refuse excessive caseloads--it even obligates it. From the formal opinion: "If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients." The 8 guidelines proposes a road map for a staff public defender to do this: "Regardless of the source of concerns, it is incumbent upon management to determine whether the volume of cases, perhaps in combination with other responsibilities, is preventing lawyers from providing “competent” and “diligent” representation and a failure to discharge their responsibilities under applicable performance standards.25 Depending upon the circumstances, supervisors of lawyers and heads of Provider programs are accountable under professional conduct rules when violations of ethical duties are committed by subordinate lawyers for whom they are responsible.26 However, when a lawyer and supervisor disagree about whether the lawyer’s workload is excessive, the decision of the supervisor is controlling if it is a “reasonable resolution of an arguable question of professional duty.”27 Where the resolution of the supervisor is not reasonable, the lawyer must take further action.28

You are lucky to have a supportive supervisor, but I am hearing from many offices where management is not supportive. We can use these rules to stop accepting excessive caseloads--by showing the numbers and appropriate case weighing; by letting the supervisor/boss know, in as gentle a way if possible, that they are ethically vulnerable if they do not investigate caseload concerns; and by giving us the ability to refuse the cases, no matter what the supervisor says.

I'm not advocating doing this recklessly, but carefully: to have the numbers, analysis, and even an opinion of a crim professor to back up the decision to refuse. And I promise you, the bad boss/sup won't be able to touch the refusing attorney, because they will not have been monitoring the caseloads as they are supposed to do under the rule. (More on this in an upcoming post)

Can I have your supervisor?

Nathan said...

It is a sad state of affairs when Justice is nonexistent. There is a wholesale denial in Florida of real and pervasive problems whereas courts defend their integrity with worthless diatribe.

The Offices of the Public Defender do not have the resources to fulfill their duties. Some assistant Public Defenders carry caseloads impossible to meet. People are pleading simply to get out of jail, not because they admit guilt, but because the excessive delays in the courts due to congestion. No more is the creed "innocent until proven guilty", it has been subverted into "guilty until proven innocence". People are actually held in jail until the expiration of the maximum sentence for their alleged infraction, before even having a hearing on the charge.

A defendant that complains that his Public defender stated that the workload prevents his providing even minimal constitutional assistance is thought delusional, but that is simply a self evident truth. And the substandard conflict attorney's, who operate simply to get some minimal flat fee too dispose of a case, how can that be equated to deliver justice?

For an appeals court to tell the Public Defender, that not accepting 3rd degree felonies except on a case by case basis is blatantly incredulous, for that adds a layer of overheard to his already crowded caseload.

The courts in Florida are simply insane or grossly in denial.