How to Be a Public Defender Revolutionary, Professor Version

It may be difficult to persuade you to join a public defender revolution just on my say-so. Maybe I am an extremist or overestimate the power of solidarity or the ethics rules. Maybe I suck. As overheard by a witness to the debate by the Board of Directors of the Washington Defender Association about whether to publish an article of mine: "Who does she think she is?"

I have advocated that we use of Formal Opinion 06-441 (ABA Committee on Ethics and Professional Responsibility, 2006) and the Eight Guidelines of Public Defense Related to Excessive Workloads (ABA Standing Committee on Legal Aid and Indigent Defendants, 2009) to precipitate the end of excessive caseloads. I realize, however, that my crazy tales of PD-life and intermittent profanity may not provide the level of authority and credibility necessary to allow you to challenge your caseload and the people who employ you.

To bolster the credibility of my thesis that public defenders have the power and authority to refuse excessive caseloads, I offer an article I only recently came across, Restraining Excessive Defender Caseloads: The ABA Ethics Committee Requires Action (Lefstein and Vagenas, The Champion, 2006). For a while now, I have been reading every public-defender study, report, article, or compendium that Googles its way onto my computer screen, and I am at a loss to explain how I missed a piece so relevant to the revolution. I am tempted to believe that I read it and then forgot about it--but this article is not the type of thing that I forget.

I'm glad I unintentionally saved reading this article until now, though, because it validates the message in my "How to Be a PD Revolutionary" posts (basically, that line public defenders should use ABA Formal Ethics Opinion 06-441 and the ABA 8 Guidelines to refuse to accept excessive caseloads), but thankfully supplies needed scholarship and gravitas.

Even though I hadn't seen the article until recently, I am familiar with the author, Norman Lefstein (Professor of Law and Dean Emeritus, Indiana University School of Law - Indianapolis)(who wrote the article with co-author Georgia Vagenas), because in my avid yet haphazard reading of public-defender reform publications, I had noticed his name attached to many pieces that resonated with me--writings or guidelines that helped me understand what I have been living through. He was one of two reporters and major contributor for Justice Denied, for example, which I briefly wrote about here. I also quoted Professor Lefstein in the same post (from this article in the New York Times): “I think the quality of public defense around the country is absolutely deteriorating. … In my opinion, there should be hundreds of such motions or lawsuits.” He was the reporter for the Eight Guidelines of Public Defense Related to Excessive Workloads, and member of the committee which produced and adopted the ABA's Ten Principles of a Public Defense Delivery System.  He was also instrumental in lobbying the ABA Committee on Ethics and Professional Responsibility to address caseload issues in a formal opinion, which, ultimately, lead to the ABA Ethics Committee's issuance of Formal Opinion 06-441.

In their analysis of Formal Opinion 06-441, which is both scholarly and revolutionary, Professor Lefstein and Ms. Vagenas assert: "[T]he new opinion is enormously important because it furnishes potent ammunition for defenders seeking relief from excessive caseloads before judges and from those in charge of their offices." This statement backs the opening paragraph of my "How to Be a Public Defender Revolutionary" series (except the 8 Guidelines did not yet exist): "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."

Before reading the Champion article (which was published in December 2006, a few months after Formal Opinion 06-441 was issued), I hadn't realized the controversy the opinion had generated, with some public-defender heads adamantly opposed to its adoption. With such controversy and drama at the upper levels of national committees--some predicting a hostile takeover of offices by "under-performing" lawyers, others expecting righteous reform--those involved expected, I imagine, something in the wake of the opinion's issuance. In reality, though, the opinion caused "barely a ripple." (Note to all committees, symposiums, summits: if you exclude line defenders from your work, we may not notice when you do something, no matter how good it is.)

The lack of response to the issuance of Opinion 06-441 apparently dismayed Professor Lefstein, who wrote, some two and a half months after its adoption, "The ABA ethics opinion should be understood as a call to action by both individual defenders burdened with excessive caseloads, as well as by supervisors and heads of defender programs. The sad truth is that it seems not to be. The opinion was issued in mid-July 2006 (although dated May 13, 2006), and we are writing this conclusion at the start of October. During the past two-and-a-half months, however, the opinion seems to have created barely a ripple among defenders throughout the country."

I wonder what Professor Lefstein would have written if his future-self had somehow relayed that four years later the effects would be much the same.

While the most important message to be taken from Formal Opinion 04-441 and the Champion article is that in every state, pursuant to professional conduct rules, every lawyer is ultimately responsible for his or her own ethical conduct, I found the controversy over the opinion's adoption the most telling regarding the institutional problems that many public defenders face. At the heart of the controversy is the opinion's clear endorsement of a line defender's duty to withdraw or refuse to accept additional cases if the workload is excessive, even if this action contradicts a supervisor's directive, if the supervisor's directive is unreasonable.

The Champion article summarizes a defender's ethical duty to take action regarding an excessive caseload:

"If the supervisor’s decision in the matter [regarding a defender's excessive caseload] is not reasonable, however, the opinion states that 'the public defender must take further action.' '[T]he lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender's office.' And, if relief is still not obtained,the opinion indicates that there are still two additional steps that the attorney may pursue: (1) take the issue to the governing board of the agency, if any; and,(2) if still no relief is obtained, the lawyer may file a motion seeking to 'withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.'"

While I appreciate the clarity with which the opinion spells out this duty, the model rules have long provided that a lawyer should follow the opinion of a supervisor unless the supervisor's opinion isn't reasonable. (Parenthetically, I have never understood the ethics rules' endorsement of subservience to supervisors. Doesn't history show a greater danger from people using the excuse of superiors' orders to justify unethical behavior than it shows the danger of uppity rookies disrupting law and order? Perhaps the reason for the endorsement of subordination lies in the fact that lawyers on these committees tend to be former or current supervisors?)

Apparently, however, this idea--that line defenders should take action to alleviate an excessive caseload, even when contrary to a supervisor's order, if the supervisor's order is unreasonable--caused a few head defenders to protest the proposed opinion in writing and to predict public-defender anarchy if the opinion were to be adopted. Describing this reaction, Professor Lefstein and Ms. Vaganas wrote, "While the ABA Ethics Committee was preparing its opinion, several California public defenders sent letters to the committee and to other ABA officials, arguing that individual defenders must be absolutely bound by the decision of the head defender respecting whether a defender’s caseload was excessive."

One wonders how any defender--how any member of the bar--could advance this opinion. It is undisputed that many public defenders are assigned caseloads that are grotesquely excessive. Did these California defenders really mean that individual defenders should be absolutely bound to carry these impossible caseloads and irresponsibly provide inadequate representation, simply because a superior ordered it? Perhaps the Professor Lefstein and Ms. Vaganas misunderstood the California defenders' criticism?

It is, however, difficult to find ambiguity in a letter from Michael P. Judge, head of the Los Angeles County Public Defender Office, to the ABA's Standing Committee on Legal Aid and Indigent Defendants and to the Ethics Committee. The following is an excerpt from this letter, quoted in the Champion article:

"It [the proposed opinion] could easily make Public Defender offices unmanageable. It, inter alia, could substitute the judgment of a rookie lawyer, lacking experience and perspective for the discretion exercised by my attorney managers and me. Attorney managers in my office are all former trial lawyers who possess at least 15 years experience. Many like I have more than 30 years of such experience. It would set in motion an adversarial relationship between me and my lawyers such that resort to punitive measures such as discipline would likely occur. . . .The proposed rule (sic: ethics opinion) would be the source of much grief and mischief."

Mr. Judge sent a similar letter to the president of the American Bar Association, predicting that the proposed ethics opinion “would be exploited by under performing lawyers, who instead of complying with remedial efforts … would demand caseload relief and claim retaliation if any personnel action is taken by managers or the Chief Defender." According to the Champion article, chief defenders from several other California counties also wrote letters expressing concerns similar to those of the Los Angeles County Public Defender.

The logic of these letters fails to persuade me. Let's assume, for the sake of argument, that Mr. Judge and his managers are infinitely reasonable, and assign and monitor only reasonable caseloads. Mr. Judge's argument would then be that because he and his managers are reasonable, no line defender in the country should have the power to take action against the directive of a superior regarding an excessive caseload, because this power would make public-defender offices unmanageable. Given the documented problem of excessive caseloads throughout the country, doesn't this seem myopic? Doesn't this position ignore the fact that the rule only allows action against a supervisor's advice if the supervisor's position is unreasonable?

The content of these letters signal a deeper problem, a problem I've lived with, but is difficult to describe. Because I have worked in several different defender offices (by choice, not termination, so far), I've noticed that some bosses see themselves as leaders who support and inspire the troops. Others, however, seem to model themselves as assistant principals, charged with the duty of monitoring "under performing" lawyers.

My guess is that a boss who worries about the exploitation of ethical rules by under-performing lawyers, already has, inter alia, an adversarial relationship with his lawyers--a relationship that has nothing to do with an ethics rule. When you act like the assistant principal, you not only dimishish your own ability to inpire and lead, you diminish the lawyers, their faith in themselves, and ultimately harm the clients.

Note to head defenders: We are not the enemy. We need your help to correct excessive caseloads, but you could use our help as well. Imagine saying to county commissioners, "I know you want me to assign my lawyers 400 felonies a year. If I do that, however, my lawyers will have the ethical duty to decline additional cases, no matter what I tell them to do."

Professor Lefstein and Ms. Vaganas recognize the interplay in the power the opinion gives both line defenders and PD heads:

"We believe, however, that defenders and their offices are not as powerless as they may think they are. And the ABA’s new ethics opinion tells them that they have a clear duty to take action both to protect fully the legal rights of their clients and themselves from furnishing incompetent representation. But it takes courage to stand up to authority – both the authority of judges and sometimes the heads of defender programs. It also takes courage from the heads of defender programs and their boards of directors."

I believe that most state public defenders have excessive caseloads, some more excessive than others, but excessive nonetheless. Many of us achieve remarkable results despite this burden, but these results come with the emotional toll of being stretched too thin, the weight of guilt regarding the corner-cutting necessary to achieve results, and self-doubt that follows the constant criticism from all fronts despite our sometimes heroic efforts. We may not command high salaries or the respect of the community, but courage? Courage we have in abundance, if we remember to use it not only for our clients, but also for ourselves.

How to Be a Public Defender Revolutionary, Part IV

THE REVOLUTION STARTS NOW

Fourteen Public Defenders in Minnesota have filed a labor grievance over their heavy caseloads. This may be the first example of street-level public defenders taking organized action against their bosses to curtail excessive caseloads, as reported here.  (For more about how ABA ethics opinion 06-441 gives PDs the tools to control excessive caseloads, see How to Be a Public Defender Revolutionary, Part I, II and III).  The Minnesota 14's stance is patriotic, in the best sense of the word, and should inspire all of us to stand up to any government agency that attempts to violate our clients' right to receive effective assistance of counsel and our right to provide it.  Public Defenders in Minnesota, we salute you!

(Thank you, Martha, for posting a link to this story on the comments--and on The Power of Yep! :)  )

Things I Get Yelled at For, No. 1

I had debated whether to post about Things I Get Yelled at For, because even though Getting Yelled At is a constant, occasionally funny, and typical occurrence in the PD profession, when one talks about it, one faces the possibility of sounding whiny or defensive or in need of getting yelled at. I'm trying to save my complaining for my real-life colleagues, who have to put up with me, rather than directing it at you, my invited blog-reading guests.

I changed my mind and decided to write about Getting Yelled At because I received an email that reminded me how dismaying this treatment can be to newer PDs. My hope is that by showing you guys that I get yelled at (believe me, all the time) you can take comfort in the fact that you're not the only one.

A PD reader wrote,

I was one of the few in my law school peer group to want to work as a public defender but I don't think I was prepared to face the onslaught of disdain one receives from judges, prosecutors and sometimes the client. I love this job, I consider it a privilege, but I don't think anyone could do it without a strong network of dedicated colleagues.

So, Dear PD Reader, this is for you:

FROM THE ARCHIVES, unknown year, subtitled: "And You ALWAYS Grant My Dismissal Motions"

(Background: I had a client facing drug charges, who was taken into federal custody and prosecuted in federal court. One day, the federal hold was released, and he was back in state custody. I expected the state prosecutor to dismiss my case, because I learned that the client had received a lengthy prison sentence in federal court. I believed that the federal prosecution involved the same set of facts as my case, but wasn't completely sure--sometimes cases will overlap, but not involve the exact same facts.

I was surprised when the prosecutor offered the fabulous plea bargain that my client plead guilty as charged to the state charges. I asked the prosecutor if the federal case and my case were the same, and he assured me that they were completely different.

The trial date approached and I obtained a copy of the court file from federal court, and discovered that the federal facts for which my client was prosecuted were the exact same facts that my case involved. Because the crime he plead guilty to as part of a plea bargain in federal court had different elements than mine (maintaining a drug house vs. possession with intent to deliver), though, a dismissal under WA's statutory double jeopardy bar was arguable, but not guaranteed. In my research, I learned that a motion to dismiss on these grounds could be brought at any time, even for the first time on appeal, and noted that the trial was set the week after Christmas and involved a dozen state and federal officers, and called the case ready for trial.

What follows is a redacted, rough transcript of the state's motion to continue, heard on the day of trial. The judge hearing the motion was assigned only to hear the state's continuance motion, and had done nothing on the case prior to this hearing, and was not assigned to hear the trial. (please note that I sound pretty stupid here--and maybe I always do--but I really wasn't expecting to get yelled at on this day and was caught off guard.)

MS. PROSECUTOR: This is State’s motion for continuance of the trial date, I filed a certificate in support of my continuance request. ... The case rests exclusively on the testimony of the law enforcement officers who were present and conducted the search and interviewed the defendant. Both Deputy AAA and Detective BBB are material witnesses for the State and out of the office until January ... In terms of any prejudice in terms of speedy trial, the Defendant is here on a Marshall’s hold, um, he was sentenced to seventy-eight months in federal prison so arguably he’s on a ninety day clock. ... He’ll remain in custody but he’s serving the federal sentence in any event.

This is the first trial date, as the court knows, it’s unusual for a case to really go on the first trial date. The drugs are in the lab, you know, having been tested. It’s not as though I don’t have my physical evidence; I don’t have my testimonial evidence and I found out about that, well, I guess on the 23rd when I submitted my certificate.

COURT: Ms. Defender.

MS. DEFENDER: My client has already plead guilty and been sentenced to about seven and a half years for the exact same conduct that he has been charged for by the State. Those issues aside, when the state made an offer of pleading guilty with concurrent time, that seemed ludicrous to us since he’s already plead guilty and gotten a substantial amount of time for the same conduct and on the same date ...

COURT: Is there gonna be a motion here?

MS. DEFENDER: There will be, but it can be brought at any time even for the first time on appeal, when it’s regarding jurisdiction and double jeopardy, although it’s more statutory double jeopardy than constitutional.

COURT: Wouldn’t it make a little sense to have it at this point instead of putting the tax payers to the expense of another trial?

ME: Your Honor, the Defendant has the right to a trial and the Prosecutor is the one who is electing to pursue this trial, when my client has already plead guilty and been sentenced in federal court. The Prosecutor is the one who is choosing to prosecute him again even though he’s already been sentenced. My client has the right to a trial.

COURT: Why would you want to put him through a trial if you could simply note a motion?

ME: Excuse me, Your Honor? My client has a right to a trial ...

COURT: Ms. Defender, [a gavel may or may not have been banged at this point] Ms. Defender, I don’t appreciate your attitude or your demeanor today. I am asking you respectful questions and I’m, that’s not what I’m getting back from you.

ME: I apologize, Your Honor, I do apologize for my tone. That’s not what I meant. I was a little surprised when the court asked me whether I felt bad about putting my client through a trial which . . . Frankly, I was a little shocked by that question.

COURT: Is there, you’re saying that there’s a valid issue of jurisdiction. Why not bring a motion so that he doesn’t have to go through a trial and perhaps this could be dismissed before he has to go through that?

The judge eventually denied the state's continuance request, and later that day, the case was dismissed.

My Bad Blogging Manners

T his blog wasn't launched by with a detailed, organized publication plan. In fact, it had a false start a year earlier (some of you may have found the Wordpress version), where I put up one post, got frustrated trying to make a custom header, and let it go. I thought about starting again every once in a while--I loved the name, "public defender revolution" and all it implied, and I was pissed that the Washington Defender Association had censored an article I had written about reforms--my blog won't censor itself, I thought.  Sure, ideas would percolate in my overperked brain--but it's not like I wrote out a blogging plan and had a bank of posts ready to go.  The only reasons public defender revolution actually launched this year are a) another year's frustration about public-defender stuff built up inside me; and b) I didn't have anything to do on New Year's Eve (resolution:  start blog this year!); and  c) my friend Little Crazy came by to help me do nothing and assisted with the set up.

Even though I didn't have a formal blogging plan, I operate under the assumption that I am relatively normal (I know, hold your comments) and blog readers, particularly public-defender blog readers, would probably respond to the same things that I respond to. I also knew that there was a vast untapped market for public defender stories and PD stuff.  I also had a reason behind the blogs--to try to empower public defenders to unite and assume control of  PD reform.

I knew almost nothing about blogging--I read a few blogs every once in a while--if I find a topic that interests me and a writer I like, I will have a little love affair with that blog.  If a blog-crush keeps giving me something on a regular basis, I get hooked.  Thus, I planned to post as much as I could as often as I could during the first month.

But daily posting ate up all of my free time, and left little time to explore the blogging world or rules of etiquette. Little Crazy told me about Site Meter, which I guess everyone else knows about, but it almost felt dirty having it--seeing where readers were from and what they clicked on.  But apparently I can get OK with dirty, because I found the spinning world thing, which I really like ...

I noticed that the number of readers was going up, and I kept writing or making PD cards/bumper stickers, etc. I found the 'referrals" section of Site Meter and could tell which links readers were following to the blog. Even though I have never been to South Carolina, I have developed a fondness for it, because the little dots on the S.C. map were the first to light up with regularity. I would look at those dots, and think, Who are those guys? In fact, S.C. kept me going for awhile, because it would be 11:00 p.m. and I'd think, I'm not going to finish this tonight--I'll have to post it in the morning, but then I'd think, By the time it's morning here, the day is almost done in S. Carolina--and they're my only readers. There's even a head PD in S.C. who I chat with every once in a while (Hey Mike!)

My college friend Scott at Grits for Breakfast posted the first link--without him, I would still be blogging to myself, thinking, Why is My City the only dot on the map? A few weeks after Scott's link,  some blogger I didn't even know said something nice about PDR on his blog. And then a few more. I was stunned and grateful and just kept going.  I thought, As soon as I get a minute, I am going to write these bloggers a really nice thank-you note. Do you know what happens with yet-to-be-written really nice thank-you notes? They never get written.

So all of you guys and gals, thank you for reading and helping push this blog and revolution along.  I will be glad to send any of you a bumper sticker, PD Valentines card, or PD business card if you send me your mailing address.  Here's the list of blogs that deserve a really nice thank-you note:

grits for breakfast--Scott is a one-man, criminal justice reform movement.  He is based in TX, but every state can benefit from fact-based, unbiased analysis, and every state would benefit from a blog like his.  He is a hero, and he does it without a paycheck.
south carolina criminal defense blog--I think this is where the S. Carolina guys came from.
koehler law--I can hear him talking to a jury, because I know he must sound like his blog--intelligent, reasonable, and kind.
SCOID blog--Great legal blog from Idaho, but my favorite is the sidebar quote: "No man but a blockhead ever wrote, except for money."--Samuel Johnson
v is for victory--while I don't agree with the politics of this blog, I do very much like the writer, and it reminded me that I can find shared values with someone who is ardent about issues I do not support.  Favorite thing she said about the blog, "Be aware that it contains some salty language, and is not for the timid."
trial theory--has made "trial chicken" part of the trial theory lexicon.
a public defender--when I grow up, I want to be like him.
public defender stuff--the first PD news blog I ever read; I was afraid it had disappeared but is back and strong.
underdog blog--one of the first bloggers to link to this blog and get things rolling
blonde justice--I have loved her long time.  I read that she would post a link once you had put up posts regularly for 30 days.  So I waited 30 days.  And then I thought, I want to know if she finds PDR without me, and what she thinks.  And then she liked it; she really, really liked it!
law of criminal defense--John Wesley Hall's blog.  I gave him my card at the NACDL conference.
simple justice--deserves thanks not only for support, but also for his provocative (but kind) criticism, which is more engaging than effusive adoration.
woman of the law--her last post is the reason I did not attempt real anonymity.  I knew I could never maintain anonymity--who would blab?  me!  I made my name easy to discover so that I wouldn't fool myself about my identity being secret.  The fact that I am identifiable makes me a) not have to worry about being discovered; b) makes me visualize the Bar Association evaluating every post; and c) also means I won't have to quit when someone outs me.  Ha!  I already outed myself!
gamso for the defense--English Professor turned criminal defense lawyer.  Beautiful.
tales of a public defender investigator--an informative and insightful connection to the tribe.
not guilty no way--my newest blog crush.

One more thing.  I've had a rough couple of weeks. I won't go into details, because that would involve whining, but suffice it to say, the last couple of weeks have been not just ordinary PD rough, but woman-on-the-verge rough (from my upcoming trial schedule, more than anything).

My friends at work have worried about the blog, worried that I am too outspoken, worried that I'll be punished or picked to death or fired.  They probably also recognize my woman-on-the-verge look, and I know they are trying to protect me when they say, "I'm worried about you doing this blog."

At lunch-time yesterday, I shut and locked my office door, lay down across my client chairs, and tried to imagine how I could manage to juggle my next 5 trials and, oh, my 75 other clients. (I know: Revolutionary, heal thyself!) This isn't normal for me, but happens maybe every two or three years.  Anyway, I was lying across my chairs, trying to talk myself off the verge, when I heard my iphone beep a message alert.

Best email message ever. Back from the verge.

I know my friends are sincere and thinking only of me when they say that they're worried about me doing this blog. All I can tell them is, "I worry about me if I don't do the blog."

(If you're wondering what I think of Mr. Adachi (total PD-Boss Super Hero), look here and here.)

The Care and Feeding of the Public Defender Soul

For all you PD Bosses and Supervisors out there, a handy guide to tending the public-defender soul.

1. Ditch the "Supervisor" Label
First, may we herewith and henceforth forever ban the word "supervisor" in every public-defender office in the land. "Supervisor" is an awful word, implying that one must be watched, monitored, and disciplined. The label itself encourages complaints, demeans the supervisee as one in need of supervision, and often, I think, instills in the "supervisor" a psychological (or, sometimes pathological) need to supervise.*

Instead of modeling your leadership from the hierarchical supervisor system, fashion yourselves as "coaches." Professionals at the top of their games get advice and take direction from coaches who teach, encourage, and inspire--you guys can do that, can't you?

Bosses: Evaluate your "supervisors." Is she helping the lawyers or goofing around? Does she meet with lawyers before work to help with trial preparation and spend lunch hours brainstorming cases? Does she seek out cutting-edge issues from other jurisdictions? Or is she kissing your ass in order to keep her cushy job?

2. Encourage Us
Never forget the ridiculous crap we put up with every day: don't forget how hard a trial is; don't forget how obnoxious some prosecutors are; don't forget how crappy some judges treat us. Don't forget that we are often the only ones standing up for our clients' rights, and we are getting yelled at by everyone.

Remember how all of this shit-swallowing grinds us down, and then consider: how do I keep this person fighting? You keep this person fighting by saying, "Great Job!" even if it's just for filing a brief. Or by asking, "How on earth do you put up with that bitch?" Or even, "Will it help if I go to court and kick her?" Anything, really, that says, "Keep fighting, I know you're working hard under grueling conditions. I appreciate your efforts and so do your clients."

3. Be Engaged in Stretching the Practice of Criminal Law
Keep up-to-date on cutting-edge issues. Invite outside lawyers to speak or ask your own lawyers to present on an issue.  Encourage attorneys to become become experts in one area of the law--this allows the attorneys to feel respected, and at the same time educates the presenting lawyer the other lawyers.  Ask if lawyers have the resources they need. Don't be afraid to let your lawyers teach you something.

4. Explain Stupid Rules
Many of us are not good with rules. To generalize wildly, we tend to be big-picture thinkers who don't like authority.  But don't give up.  Rather than yelling at a lawyer for breaking a rule, try explaining why the rule exists, and why it is important to follow. Your ego may want to say, "You have to follow the rule, because I am your supervisor, and you have to do what I say!" But that macho-ego shit doesn't really work with us.

Instead of, "Dammit, you're late again--this behavior has to stop immediately!" try, "Hey, I've noticed your timing is a little off in the mornings lately, is there anything going on with you?"  When the lawyer explains that he has been working all hours writing a couple of briefs that are due, you might say, "I know the long hours you've been working--your clients are lucky to have you. The thing is, the younger lawyers look up to you, and if they see you rolling in late, then they think it's OK, too. Since the briefs are finished now, could you make an effort to be here earlier? Take a long lunch if you need the mental-health time--you've certainly earned it.  And shoot me a copy of your briefs so I can share them with everyone."

5. Create a Culture that Nurtures Excellence Kickassery
Know what success means--not a failure to get complaints, not an expeditious processing of cases, not the fastest guilty pleas--success in the public defender arena means garnering the best results for each client.  Spend the time it takes to learn about our successes and talk them up. Notice the lawyers who are filing briefs, trying cases, or otherwise finagling fabulous plea bargains and talk them up.

Say "good job" to every single lawyer on a regular basis. If you can't find a reason to say "good job" to a lawyer, then you need to do your job by documenting the failures and letting the person go.

If you never say "good job," don't dog us with petty bullshit.

6. Give Us Due Process
An outstanding boss I know once said, "I wouldn't trust a lawyer who didn't get complaints from the prosecutors or the court."

You should assume nothing from the fact that you receive a complaint. You should have a standard procedure for handling complaints and follow it, making sure that no attorney feels singled out. If a complaint is legitimate, ask the lawyer how he would handle the situation differently next time. People learn from mistakes in a safe environment; people learn to resent you in a judgmental one.

7. Show Us You Are Fighting For Us
If the government tries to cut our funding, go in and fight for us, and let us see you doing it. Hold a press conference, make posters, start a media campaign. Don't give in without a fight. Don't accept additional responsibilities from the court or county without additional funding.

If the court or prosecutors are abusing one of your lawyers, go and raise hell. If you show us that you are willing to get in a fight for us, you will earn our undying respect. Sell us out to our detractors, and you may never regain it.

8. Don't Buy Into Judges and Prosecutors Smear Campaigns
Do you know who the judges and prosecutors bad-mouth? Not the lawyers who process their cases by pleading their clients guilty as fast as they can.  Not the lawyers who do anything to avoid displeasing the court. Not the lawyers who make life easy for the prosecutors.  Judges and prosecutors bad-mouth the lawyers who get in their way.  Don't buy into the crap they shovel out about us for doing our jobs. In fact, it is your job to fight against their propaganda.

Either have a close relationship with your attorneys, and know what's going on with their cases, or leave the lawyers alone to do their best. But don't think you know what's happening by listening to gossip.

9. Encourage Our Creativity and Dedication, Rather Than Stifling It
The most important thing you can do as a PD boss is to nurture the public-defender soul--the emotional commitment to do the best job possible for each client. We are starved for appreciation and easy to coach if you keep the following factors in mind: treat us with respect (you know, like real lawyers); encourage us when we work hard or have a tough battle; comfort us when we are down; be patient with us regarding rules and explain their reasons gently; ask us what we need to help us be better lawyers and try to provide it; show us you are fighting for us; and back us up.


*(not talking about my current supervisor who is a super-nice guy, and exhibits no psychological or pathological need to supervise.)