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.