Lefstein Champion Article Re ABA and Excessive Caseloads
Lefstein Champion Article Re ABA and Excessive Caseloads
CHA M PION
December 2006
Excessive
Defender
Caseloads:
ABA Ethics
Committee
Weighs In
Restraining Excessive Defender Caseloads:
The ABA Ethics Committee Requires Action
he most influential ethics body in the United in routine violations of the Sixth Amendment obliga-
BY N O R M A N L E F ST E I N & G E O R G I A VA G E N A S
10 W W W. N A C D L . O R G THE CHAMPION
even the most well-intentioned
advocates are overwhelmed,
jeopardizing their clients’ con- The Struggle for Effective Indigent Defense Services
stitutional right to effective
counsel. Remarks Delivered Upon Receipt of
NACDL’s 2005 Champion of Indigent Defense Award
The problem is not limited to My commitment to the cause of indigent defense derives from a deep-seated
public defenders. Individual belief that unless our adversary system of criminal justice is strong — unless it
attorneys who contract to protects the weakest and least powerful members of our society as well as the rich
accept an unlimited number of — the great promise of the Sixth Amendment’s right to counsel will remain
cases in a given period often unfulfilled.
become overwhelmed as well. I am sometimes asked how our country is progressing in implementing the
Excessive workloads even affect right to counsel now that the Gideon decision is more than 40 years old and we are
court-appointed attorneys. well past virtually all of the Supreme Court’s other “right to counsel” landmark
Rules of professional responsi-
decisions. Clearly, we have made important progress during the past 40 years. In
bility make it clear that every
1963, which was two years after I graduated from law school, organized and
lawyer must maintain a reason-
able workload. 9 vigorous defense services of the kind that exist today (in at least some jurisdictions)
were just beginning to be formed. But in assessing the state of indigent defense in
Like all opinions of the ABA Ethics America today, there is absolutely no reason to rejoice or even to be moderately
Committee, the new ethics opinion is satisfied.
based substantially upon the ABA Model Despite the wealth of this country and its historic commitment to due process
Rules of Professional Conduct (“Model of law,implementation of the right to counsel for the indigent is — overall — in sad
Rules”). But since state ethics rules large- shape!
ly track the ABA Model Rules, the new In 2005, the major problems of America’s indigent defense system were set
ETHICS COMMITTEE
opinion is enormously important forth in an American Bar Association report that I co-authored, titled “Gideon’s
because it furnishes potent ammunition Broken Promise: America’s Continuing Quest for Equal Justice.” The report
for defenders seeking relief from exces- concluded that,“40 years after Gideon v.Wainwright, indigent defense in the United
sive caseloads before judges and from States remains in a state of crisis, resulting in a system that lacks fundamental
those in charge of their offices. The fairness and places poor persons at constant risk of wrongful conviction.” The
opinion carefully explains how the pro- reasons: “shamefully inadequate funding,” as well as “defense systems that
visions of the Model Rules must be read frequently lack basic oversight and accountability, impairing the provision of
together as an integrated whole, and the uniform quality.” The report and its conclusions were based upon public hearings
way in which they direct a course of
held in 2004 throughout the country in recognition of Gideon’s 40th anniversary.
action for lawyers with excessive case-
In recent years, we all have witnessed a major development that has
loads and for lawyers with supervisory
responsibilities. measurably strengthened the case for substantial government support of effective
The decision of the ABA Ethics criminal defense services. Permit me to illustrate with a reflection from my past.
Committee to address the problem of During the 1970s I headed the public defender service in Washington, D.C.,
excessive defender caseloads resulted and I testified annually before congressional committees on behalf of the agency’s
from efforts by SCLAID and the National budget. But it never occurred to me then that I should argue for adequate agency
Legal Aid and Defender Association funding because of our absolute knowledge that innocent people are being
(“NLADA”) to persuade the ABA Ethics wrongfully convicted in our justice system, and that the risk of wrongful conviction
Committee to prepare an opinion on the is greatly increased when defendants are not well represented.
subject. In addition to submitting writ- Today, thanks to DNA evidence and the pioneering work of Barry Scheck and
ten requests for such an opinion,10 during Peter Neufeld, as well as many others, we know that innocent people are
the August 2005 ABA Annual Meeting in sometimes convicted and that miscarriages of justice are an unfortunate reality of
Chicago the ABA Ethics Committee met our justice system. We also know, as Janet Reno remarked when she was attorney
with a SCLAID delegation and an general:“In the end,a good lawyer is the best defense against wrongful conviction.”
NLADA representative to discuss the Thomas Jefferson once said that “eternal vigilance is the price of liberty.” Our
SCLAID/NLADA request.11 history suggests that no less vigilance is required to assure adequate defense
Initially the ABA Ethics Committee services for the poor. Unless criminal defense lawyers are genuinely independent,
was reluctant to issue an opinion on the
adequately compensated and able to fully and effectively represent their clients,
subject of excessive defender caseloads,
the capacity of government to overreach — and also to make mistakes — will not
asserting that the matter was adequately
covered in prior ethics opinions related be challenged. And the great protections of our Bill of Rights will not be realized for
to civil legal aid lawyers.12 Ultimately, all people.
however, the committee agreed that the The struggle on behalf of fully funded and effective indigent defense services
problem warranted their attention and is not won with a single victory. Rather, it is a battle that needs to be constantly
differed from burdensome caseloads of waged one skirmish at a time. But it is an exceedingly vital struggle, well worth the
legal aid lawyers, who normally are nei- fight.
ther court appointed nor under con- — Norman Lefstein
tracts sometimes requiring them to rep-
resent large numbers of clients.
W W W. N A C D L . O R G DECEMBER 2006 11
The ABA Ethics number of cases, but also on such factors lawyer must also act with commitment
Committee’s Opinion as case complexity, the availability of and dedication to the interests of the
The opinion addresses the ethical support services, the lawyer’s experience client and with zeal in advocacy upon the
responsibilities of both the individual and ability, and the lawyer’s nonrepre- client’s behalf.”26 Thus, if an attorney is
lawyer who has an excessive caseload and sentational duties.” 18 convinced that she must have relief from
the supervisors of such lawyers. After noting that “[a] lawyer’s pri- an excessive caseload and the trial court
Although the word “public defender” is mary duty is owed to existing clients,”19 denies such relief, the ABA Ethics
used in the opinion, a footnote explains the opinion suggests the courses of Committee concluded that an appeal, if
that it “means both a lawyer employed in action defenders should follow when possible, is essential in pursuit of the
a public defender’s office and any other that duty is threatened by an excessive client’s interest.
lawyer who represents, pursuant to court caseload. This can occur (1) when a However, an interlocutory appeal
appointment or government contract, lawyer’s cases are assigned by the court from a trial court’s denial of a defender’s
indigent persons charged with criminal and (2) when cases are assigned to the motion for relief based upon an excessive
offenses.”13 The logic of the opinion, lawyer by the public defender’s office or caseload appears not to be available any-
moreover, extends to juvenile delinquen- other source, such as a law firm. In the where as a matter of right. Invariably,
cy and other kinds of proceedings in first situation, when a caseload has when an appellate court hears an appeal
which the defense attorney is faced with become excessive or additional cases will in such a case, it is because the court has
an excessive caseload. Finally, the opin- render the lawyer’s workload excessive, decided to do so in the exercise of its dis-
ion deals with the duty of heads of appropriate actions include asking that cretion. For example, in Arizona appel-
defender offices, boards that oversee the court not assign new cases until the late review of a court’s denial of a
public defender and assigned counsel caseload permits the rendering of com- defender’s motion to withdraw may be
programs, if any, and private practice petent representation.20 Alternatively, if reviewed only by “special action.”27
lawyers who serve as supervisors and the matter cannot be resolved through Similarly, in New York interlocutory
managers of law firms. such a request, “the lawyer should file a appeals are not allowed as of right, and
motion with the trial court requesting the review of a denial of a motion to
The Lawyer Handling the Case permission to withdraw from a sufficient withdraw is likely available only through
ETHICS COMMITTEE
As for the individual lawyer, the number of cases to allow the provision of a “special proceeding.”28 And in Florida,
opinion begins by noting that an attor- competent and diligent representation to where there have been several appellate
ney has a duty to be both competent and the remaining clients.”21 decisions dealing with trial court denials
diligent, and also to communicate with In following these steps, must a of motions to withdraw, the courts have
the client concerning the representation. defender inform her clients of efforts to exercised discretion in deciding whether
These obligations require an attorney to withdraw from representation? The to hear the cases.29 In the event a defend-
“keep abreast of changes in the law; ade- opinion answers this question in the er’s motion to withdraw is granted, a
quately investigate, analyze, and prepare affirmative, stating in a footnote that a state’s appellate court may hear the case
cases; act promptly on behalf of clients; “client should be notified, even if court upon the petition of the county or state,
communicate effectively on behalf of rules do not require such notification.”22 which is what happened in an often-cited
and with clients; control workload so In support of such action, Rule 1.4 is Louisiana case.30 It remains to be seen
each matter can be handled competently; cited: “A lawyer shall keep the client rea- whether the opinion of the ABA’s Ethics
and, if a lawyer is not experienced with sonably informed about the status of the Committee will lead to litigation in
or knowledgeable about a specific area of matter.”23 In other words, if a lawyer seeks which state appellate courts are more fre-
the law, either associate with counsel who to withdraw because she is convinced quently called upon to resolve claims of
is knowledgeable in the area or educate that competent representation cannot be excessive defender caseloads.
herself about the area.” 14 provided, this is an exceedingly signifi- If a defender is unsuccessful in
But what is a defense lawyer to do if cant development in the client’s case, and withdrawing from current cases or in
the current caseload assigned to the the client must be told. stemming the flow of new cases and an
lawyer will prevent the rendering of What should the defender do if the appeal is either unavailable or unsuccess-
competent and diligent representation? court denies the request to withdraw ful, the opinion states that the court’s
And what is a defense lawyer to do if tak- from existing cases or refuses to refrain order must be obeyed while the defender
ing additional cases will mean that com- from assigning new cases to the defend- takes “all steps reasonably feasible to
petent and diligent representation can- er? Once again, the opinion is clear. The insure that her client receives competent
not be provided?15 In response to these defender “must take all feasible steps to and diligent representation.”31 The duty
questions, the opinion is clear and assure that the client receives competent of counsel to continue to provide repre-
unambiguous: “If a lawyer believes that representation”24 and this includes “any sentation despite believing that compe-
her workload is such that she is unable to available means of appealing”25 a trial tent legal services cannot be provided is
meet the basic ethical obligations court’s adverse ruling. Obviously, there consistent with Model Rule 1.16 (c):
required of her in the representation of a are no provisions in the Model Rules that “When ordered to do so by a tribunal, a
client, she must not continue the repre- expressly require that an appeal be taken lawyer shall continue representation
sentation of that client or, if representa- from an adverse trial court decision notwithstanding good cause for termi-
tion has not yet begun, she must decline refusing to grant relief to an attorney nating the representation.”32 The Model
the representation.”16 The opinion sensi- claiming an excessive caseload. But dili- Rules do not condone civil disobedience
bly recognizes that “[n]ational standards gence in representing a client, as noted in as a means of protesting a court’s deci-
as to [annual] numerical caseload lim- Comment 1 to Model Rule 1.3, requires sion to provide legal services, and a
its”17 cannot be controlling. As the opin- that “[a] lawyer…take whatever lawful lawyer who resists a court’s final order to
ion explains, whether a lawyer’s caseload and ethical measures are required to vin- provide representation risks being held
is excessive “depends not only on the dicate a client’s cause or endeavor. A in contempt.
12 W W W. N A C D L . O R G THE CHAMPION
In the second situation, where a agreements arise, the supervisor will agency’s board that the chief of the office
lawyer’s excessive caseload is distributed claim that her resolution is “reasonable” refuses to provide relief in the face of the
by the public defender office or other and the subordinate lawyer will insist lawyer’s excessive caseload. Subsection
source (e.g., a law firm under contract), that it is not. (b) authorizes a lawyer to go “to the
the ethics opinion suggests a course that is If the supervisor’s decision in the highest authority that can act on behalf
necessarily different from when the court matter is not reasonable, however, the of the organization” when “an officer,
assigns the caseload. In this situation, the opinion states that “the public defender employee or other person associated
lawyer, with permission of his or her must take further action.”37 “[T]he lawyer with the organization is engaged in
supervisor, must seek a solution by trans- should continue to advance up the chain action…or refuses to act in a matter
ferring cases to another lawyer in the of command within the office until either related to the representation that is a vio-
office whose workload is not excessive or relief is obtained or the lawyer has lation of a legal obligation to the organi-
“transferring non-representational reached and requested assistance or relief zation….”41 Thus, if the head of an
responsibilities within the office.”33 The from the head of the public defender’s agency fails to provide relief to a lawyer
opinion states that if a defender’s supervi- office.”38 And, if relief is still not obtained, who has an excessive caseload, arguably
sor “makes a conscientious effort to deal the opinion indicates that there are still the agency’s leader is failing in her “legal
with workload issues” there is a presump- two additional steps that the attorney obligation to the organization” to assure
tion that “the supervisor’s resolution ordi- may pursue: (1) take the issue to the gov- that the agency’s lawyers provide compe-
narily will constitute a ‘reasonable resolu- erning board of the agency, if any; and, tent client services.
tion of an arguable question of profes- (2) if still no relief is obtained, the lawyer Aside from the Model Rules, it
sional duty’….”34 This derives both from may file a motion seeking to “withdraw makes perfectly good sense for a dissatis-
the language of Model Rule 5.235 and from a sufficient number of cases to allow fied defender to seek relief from the
Comment 2 explaining the rule, which the provision of competent and diligent agency’s board of directors or trustees.
states that a supervisor’s judgment should representation to the remaining clients.” 39 The purpose of such boards is to set pol-
control when a dispute between a lawyer The basis for a lawyer taking her icy for the organization, and surely there
and supervisor is “reasonably arguable.” 36 concern about an excessive caseload to are few policies more important than
The critical question of who deter- the agency’s governing board is not determining the size of attorney case-
ETHICS COMMITTEE
mines whether a supervisor’s resolution explained in the ABA Ethics Committee loads. While boards of defender organi-
of a professional dispute is “reasonably opinion, although in a footnote the opin- zations are admonished not to interfere
arguable” is not addressed in the Model ion references Model Rule 1.13.40 in the details of how lawyers represent
Rules. And, of course, there is no easy Apparently, the ABA Ethics Committee their clients, 42 a board’s decision to
way that the rules could resolve this issue believes that the language of Section 1.13 review the overall workload of an attor-
since it will always be a matter of profes- (b) is sufficiently broad to cover the situ- ney to determine whether it is manage-
sional judgment. Inevitably, when dis- ation in which a defender informs an able should not be regarded as a viola-
W W W. N A C D L . O R G DECEMBER 2006 13
tion of this rule. Ethics Committee opinion. We address was preparing an opinion about exces-
Of course, it will not be everyday in this section the following questions: sive defender caseloads because the mat-
that a lawyer, in disagreement with those ter was mentioned during a program at
in authority in her own organization, • Did the ABA Ethics Committee err in the annual meeting of the NLADA in
files a motion with the court seeking to concluding that an individual defender Orlando, Fla., in November 2005.
withdraw and/or to curtail the assign- should be able to challenge the judg- Moreover, public defenders were told
ment of additional cases. For this to ment of her supervisor or chief defend- that the committee was being asked to
occur, at a minimum the lawyer would er? comment on the ethical duties of both
have had to be unsuccessful in appealing the head of the defender office and the
to her supervisor, appealing to the head • To what extent is the ABA Ethics assistant or deputy defender. And it was
of the agency, and to the agency’s govern- Committee opinion consistent with predicted that the committee would
ing board, assuming that such a body ethics opinions of states and other almost certainly declare that such a
existed. However, the opinion of the ABA organizations, as well as national stan- defender must be allowed to challenge
Ethics Committee, predicated on the dards related to indigent defense? her supervisor’s judgment about whether
proposition that each lawyer under the the lawyer’s caseload was excessive.48
Model Rules is ultimately responsible for • What should be the content of a Soon after this program, the head of
his or her own personal representation, is defender’s motion seeking relief from the Los Angeles County Public Defender
correct. The duty to provide “competent an excessive caseload and how should Office, which is the largest such program
representation” is owed by every lawyer the issue be presented to the court? in the country, complained in a letter to
to each client, and under the Model Rules the Chair of SCLAID and to the ABA
a lawyer cannot avoid this requirement • Do chief defenders, supervisors, and Ethics Committee of “disastrous” conse-
when those in charge of the defender board members incur potential civil lia- quences if the requested ethics opinion
program are unwilling to provide relief bility if they fail to support a defender’s were to be issued:
or to challenge the system. reasonable claim of excessive caseload?45
It could easily make Public
Duty of the Supervisor Challenging the Defender offices unmanage-
ETHICS COMMITTEE
The foregoing discussion makes Supervisor/Chief Defender able. It, inter alia, could substi-
clear that the supervisor’s judgment At first blush, it may seem unneces- tute the judgment of a rookie
respecting a defender’s excessive caseload sary to discuss whether the ABA Ethics lawyer, lacking experience and
is controlling if the disagreement is “rea- Committee made a mistake in deciding perspective for the discretion
sonably arguable,” although not other- that a defender, if unreasonably denied exercised by my attorney man-
wise. But there is more to be said about relief from an excessive caseload, is agers and me. Attorney man-
the duty of the supervisor. As the opinion authorized to challenge a supervisor or agers in my office are all former
points out, consistent with Model Rule head of a defender program by filing a trial lawyers who possess at least
5.1, “lawyers having direct supervisory motion with the trial court seeking to 15 years experience. Many like I
authority [must] take reasonable steps to withdraw from pending cases and/or to have more than 30 years of such
ensure that lawyers in the office they avoid additional assignments. Are not experience.
supervise are acting diligently in regard the Model Rules clear about this issue?
to all legal matters entrusted to them, In fact, as noted above, the rules do It would set in motion an adver-
communicating appropriately with the not leave any real doubt about the mat- sarial relationship between me
clients on whose cases they are working, ter. Model Rule 5.2 recognizes that “[a] and my lawyers such that resort
and providing competent representation subordinate lawyer does not violate the to punitive measures such as
to their clients.” 43 Rules of Professional Conduct if that discipline would likely occur. . . .
If a supervisor determines that a lawyer acts in accordance with a supervi- The proposed rule (sic: ethics
defender’s workload is excessive, “the sory lawyer’s reasonable resolution of an opinion) would be the source of
supervisor should take whatever addi- arguable question of professional duty.”46 much grief and mischief. 49
tional steps are necessary to ensure that The unmistakable implication of this
the subordinate lawyer is able to meet her language is that a lawyer violates profes- The Los Angeles County public
ethical obligations in regard to the repre- sional conduct rules if she follows a defender also sent a letter to Michael
sentation of her clients.”44 Among the supervisor’s instruction that is not a “rea- Greco, then President of the American
options set forth in the opinion are the sonable resolution” of the matter. This Bar Association, expressing similar
following: (1) transferring non-represen- approach, moreover, is consistent with concerns and warning that the pro-
tational duties to other lawyers in the Model Rule 1.1, which requires that posed ethics opinion “would be
office; (2) transferring cases to other every lawyer always provide “competent” exploited by under performing lawyers,
lawyers in the office who can handle the representation. 47 who instead of complying with reme-
cases competently; (3) providing addi- While the ABA Ethics Committee dial efforts…would demand caseload
tional resources to the overburdened was preparing its opinion several relief and claim retaliation if any per-
lawyer so that she is able to provide com- California public defenders sent letters to sonnel action is taken by managers or
petent service; and (4) supporting the the committee and to other ABA offi- the Chief Defender.”50 Chief defenders
subordinate lawyer’s effort to withdraw cials, arguing that individual defenders from several other California counties
from client representation. must be absolutely bound by the deci- also wrote letters expressing concerns
sion of the head defender respecting similar to those of the Los Angeles
Beyond the ABA Ethics Opinion whether a defender’s caseload was exces- County Public Defender.
There are a number of issues worthy sive. Many chief defenders were aware in None of the letters from the
of consideration in the wake of the ABA advance that the ABA Ethics Committee California public defenders mention the
14 W W W. N A C D L . O R G THE CHAMPION
Model Rules or acknowledge that Model the California Ethics Committee.56 The sional Conduct…. Although
Rule 5.2 anticipates that a supervisor’s California ethics opinion is of interest Model Rule 5.2 is not binding
reasonable judgment should be binding nevertheless because in answering the on California attorneys, we be-
upon a subordinate lawyer. While it is question of an attorney’s duty when lieve that the guidance it pro-
understandable that a chief public faced with too many cases, the California vides does not conflict with Cal-
defender might prefer that her authority Ethics Committee dealt with the roles of ifornia authority and is both
never be challenged, the evidence of both a deputy public defender and chief helpful and appropriate for Cal-
excessive defender caseloads throughout defender, offering opinions substantially ifornia attorneys in the present
the country51 strongly suggests, just as a similar to those contained in the ABA’s situation.
matter of policy if nothing else, that new ethics opinion. Moreover, the Cali- ****
defenders should be permitted to chal- fornia opinion invoked ABA Model Rule But if Attorney Y believes that
lenge the leadership of their organiza- 5.2 as instructive for California lawyers: he may not rely on the decision
tions. But, in addition, under rules of of Attorney X respecting his
professional conduct, assistant or deputy But if Attorney X, the defender ability to provide competent
defenders everywhere jeopardize their heading the office, disagrees, we representation because that
law licenses when less than “competent” believe that attorney Y, as a decision constitutes an unrea-
representation is provided. deputy defender [who com- sonable resolution of a question
At the time the California public plains about an excessive case- of ethical duty, Attorney Y . . .
defenders wrote their letters, the state of load and an inability to provide must proceed to invoke, and
California had not yet adopted a coun- competent representation], exhaust, all the remedies avail-
terpart to Model Rule 5.2 dealing with may satisfy his ethical duties to able to him in the office.
the duty of subordinate lawyers. This his indigent criminal defendant Ultimately, however, in circum-
provision also makes clear that a lawyer is clients by following Attorney stances that we believe are likely
bound by the “Rules of Professional X’s decision, unless that decision to occur only rarely, Attorney Y
Conduct notwithstanding that the lawyer constitutes an unreasonable reso- may have no alternative other
acted at the direction of another person.” lution of a question of ethical du- than to decline to proceed. 57
ETHICS COMMITTEE
However, the California State Bar has ty. (Emphasis added).
now proposed a provision almost identi- In the absence of California au- Ethics Opinions and Standards
cal to ABA Model Rule 5.2 and public thority on point, we look for There are several approved ethics
comment has been invited.52 In response, guidance to Rule 5.2 of the opinions of state bars (unlike the unap-
the Los Angeles County Public Defender American Bar Association proved California ethics opinion) deal-
has strongly urged the State Bar of (ABA) Model Rules of Profes- ing with defender caseloads, and these
California not to adopt a California
counterpart to Model Rule 5.2 because it
could lead to the ABA Ethics Committee
opinion being held applicable to
NACDL STRIKE FORCE STRIKE FORCE
CO-CHAIRS
Howard M. Srebnick
California public defenders. 53 YOU NEVER STAND ALONE Miami, FL
(305) 371-6421
Just like ABA Model Rule 5.2, the NACDL’s Strike Force will [email protected]
proposed California rule declares that a review your case at no cost
when you have been:
lawyer does not have an excuse for failing
■ Subpoenaed for Susan W. Van Dusen
to provide competent representation sim- properly representing Miami, FL
ply because she is acting under instruc- a client (305) 854-6449
[email protected]
tions of a supervisor. In fact, proposed ■ Threatened with
Comment 1 to California’s proposed Rule contempt
5.2 contains the following sentence, which ■ Hit with an improper Martin G. Weinberg
Boston, MA
is not included within Comment 1 to motion to disqualify (617) 227-3700
ABA Model Rule 5.2: “A lawyer under the you from a case [email protected]
supervisory authority of another lawyer is
not by the fact of supervision excused Michael L. Stout
from the lawyer’s obligation to comply CIRCUIT COORDINATORS Las Cruces, NM
For immediate assistance call the Lawyers’ Strike Force Circuit Coordinator nearest you. (505) 524-1471
with the Rules of Professional Conduct or [email protected]
1st Circuit 5th Circuit 7th Circuit 9th Circuit
the State Bar Act.” 54 Martin G. Weinberg Frank Jackson Richard Kammen Richard A. Cremer 11th Circuit
Boston, MA Dallas, TX Indianapolis, IN Roseburg, OR
Almost a decade before the ABA (617) 227-3700 (214) 871-1122 (317) 236-0400 (541) 672-1955
Stephen R. Glassroth
Montgomery, AL
Ethics Committee issued its recent opin- [email protected] [email protected] [email protected] [email protected] (334) 263-9900
[email protected]
ion on excessive defender caseloads, the 2nd Circuit Kent A. Schaffer 8th Circuit Alfred Donau, III
William I. Aronwald Houston, TX Bruce H. Hanley Tucson, AZ Howard M. Srebnick
California Standing Committee on Pro- White Plains, NY (713) 228-8500 Minneapolis, MN (520) 795-8710 Miami, FL
fessional Responsibility and Conduct (914) 946-6565
[email protected]
[email protected] (612) 340-8921 [email protected] (305) 371-6421
[email protected]
(“California Ethics Committee”) pre- 6th Circuit Ronald I. Meshbesher David A. Elden
3rd Circuit Donald A. Bosch Minneapolis, MN Los Angeles, CA Susan W. Van Dusen
pared an ethics opinion on the same sub- Alan L. Zegas Knoxville, TN (800) 274-1616 (310) 478-3100 Miami, FL
ject. Although the California Ethics Chatham, NJ
(973) 701-7080
(865) 637-2142
[email protected]
rmeshbesher@meshbesh-
er.com
[email protected] (305) 854-6449
[email protected]
Committee opinion, Formal Opinion [email protected] 10th Circuit
James A. H. Bell Burton H. Shostak Charles W. Daniels DC Circuit
Interim No. 97-0007, is still available on 4th Circuit Knoxville, TN St. Louis, MO Albuquerque, NM Henry W. Asbill
the Web site of the California State Bar,55 John K. Zwerling (865) 637-2900 (314) 725-3200 (505) 842-9960 Washington, DC
Alexandria, VA [email protected] bshostak@msmattor- [email protected] (202) 912-4800
following a period of public comment, (703) 684-8000 neys.com [email protected]
[email protected]
the opinion was never formally issued by
W W W. N A C D L . O R G DECEMBER 2006 15
are substantially similar to the approach Just as this committee rejects Criminal Justice, Providing Defense
of the new ABA ethics opinion. But none any mathematically set number Services (3d ed. 1992)….”67
of the state bar ethics opinions are as of cases a lawyer may handle as In fact, beginning in 1979, the sec-
comprehensive as the ABA’s opinion and an ethical norm, we do not ond edition of Providing Defense
none of the other opinions were ren- believe that the Rules of Services has contained a provision on
dered by an ethics body of comparable Professional Conduct allow a “workload” that is substantially similar in
prestige that speaks on behalf of the supervisory lawyer to arbitrarily its approach to the ABA’s new ethics
largest group of lawyers in America. require each lawyer in an office opinion.68 Today, much like the second
These prior state bar ethics opinions to handle a certain number of edition, the third edition of the standards
are cited in the ABA’s ethics opinion. And cases. Aside from differences in published in 1992 admonishes defense
in each of the opinions, the state bar’s individual skill, differences in organizations and individual lawyers to
ethics committee concluded that a public the complexity of cases, difficul- take such steps as may be necessary to
defender is not justified in violating rules ties in communication with avoid either “pending or projected case-
of ethics due to an excessive caseload. In clients, variances in factual loads” that interfere with rendering
a 2004 opinion, for example, the Ethics investigation and legal research “quality representation or lead to the
Advisory Committee of the South render it virtually impossible to breach of professional obligations.”69 The
Carolina Bar recommended that an over- determine some ideal basket of ABA’s Defense Function standards con-
burdened public defender should “first 160 cases that an ‘average’ lawyer tain a comparable provision, so that in
raise the matter with [the] attorney’s should handle in a year.”63 both of the ABA’s chapters dealing with
supervising lawyer or the chief public defense representation, lawyers are told to
defender.”58 In the event relief is not Still another opinion especially be mindful of the size of their workloads,
obtained, the committee recommended noteworthy is Ethics Opinion 03-01 its impact on the quality of their repre-
that a defender present the matter to the issued by the American Council of Chief sentation, and the risk that it “may lead to
agency’s board of directors, if any, and if Defenders (“ACCD”), which is part of a breach of professional obligations.”70
that fails, the defender “should refuse to the NLADA. Since the ACCD is com- Standard 5-5.3 of Providing Defense
accept additional appointments until the prised of chief public defenders from Services also provides that judges should
ETHICS COMMITTEE
attorney’s caseload is reduced to the level across the country, its ethics opinion not require either individual lawyers or
that the attorney can ethically handle.”59 understandably addresses the excessive defense programs to accept so many
As for the cases of pending clients that workload issue from the standpoint of a cases that the quality of representation is
the defender cannot competently repre- defender agency head. The opinion, jeopardized or professional obligations
sent, the attorney must seek the court’s however, is consistent with the ABA’s new violated.71 While it is obviously impor-
permission to withdraw. Significantly, ethics opinion and the opinions of state tant that judges not force defense lawyers
the opinion recites that the attorney bar ethics committees. Thus, the opinion to accept more cases than they can repre-
seeking the ethics opinion is “employed concludes that “[w]hen confronted with sent and to consider carefully an attor-
by a Public Defender’s Office…[and] has a prospective overloading of cases or ney’s plea of case overload, the new ABA
a caseload of 1,000 felonies.” 60 reductions in funding or staffing which ethics opinion does not address the
In 1990, the Ethics Committee of the will cause the agency’s attorneys to responsibility of judges in dealing with
Arizona State Bar issued an opinion con- exceed…capacity [to provide competent, defense requests for relief from excessive
taining conclusions virtually identical to quality representation in every case], the caseloads. The reason for this is probably
those of the ABA Ethics Committee and chief executive of a public defense agency because the ABA Code of Judicial
the Ethics Advisory Committee of the is ethically required to refuse appoint- Conduct on which the committee would
South Carolina Bar. In addition, the ment to any and all such excess cases.”64 have had to base its opinion lacks provi-
Arizona opinion is noteworthy for its The opinion also recognizes that an indi- sions that clearly apply to a judge’s duty
discussion of the deference due to a vidual defender breaches his or her duty to grant defenders relief from excessive
“lawyer’s determination that his or her to provide competent representation if workloads. In some states, there are
caseload is excessive and violative of his an excessive caseload is accepted, citing workload standards applicable to
or her duties of competence and dili- the ethics opinions from Arizona men- defenders similar to Standard 5-5.3,72 but
gence….”61 In the opinion of the Arizona tioned earlier and opinions from there are relatively few court procedure
committee, this judgment should be Wisconsin. 65 rules that impose on judges a duty to
given “great weight.”62 The committee The ABA’s Ethics Opinion cites monitor defender workloads and to pro-
then elaborated on its rejection of any favorably Principle 5 of the ABA Ten vide relief if excessive workloads are like-
formula for deciding on the number of Principles of a Public Defense Delivery ly to prevent effective representation. 73
cases that a defender can handle: System (“ABA Ten Principles”). This
principle provides that “[d]efense coun- Motions to Withdraw
Although the law in some con- sel’s workload is controlled to permit the Since the Model Rules do not deal
texts may treat Assistant Public rendering of quality representation.”66 with the content of motions to withdraw
Defenders as interchangeable The opinion, however, does not make when lawyers have too many cases, it is
goods, the duties of competence any mention of the ABA criminal justice not surprising that the ABA’s new ethics
and diligence are peculiarly standards on which Principle 5 and the opinion does not either. For defenders,
individual duties. Individual other principles of the ABA Ten however, the content of such motions is
skills are not interchangeable; Principles are based. As the introduction extremely important since a successful
and what one lawyer may com- to the ABA Ten Principles explains, withdrawal motion may be the only way
fortably handle may severely “[t]he more extensive policy statement in which a defender or head of an agency
overtax another. dealing with indigent defense services is can obtain relief from excessive case-
•* * * * contained within the ABA Standards for loads.
16 W W W. N A C D L . O R G THE CHAMPION
What should be in a motion to with- likely receiving the effective assistance of prosecution of appeals. In this
draw based upon too many cases? Unless counsel due to defender caseloads, the instance, however, we conclude
a defender knows in advance that the court had before it detailed factual find- that the Public Defender of the
judge will grant the motion based simply ings developed in a series of hearings in Tenth Circuit has presented suf-
on a request for relief, arguably the the trial court.74 Similarly, when a federal ficient grounds to be permitted
motion should be detailed, supported by judge held in a class action lawsuit that to withdraw from representa-
appropriate affidavits, and contain a the caseloads of the Illinois Office of State tion of appeals. 76
request for a hearing. Ideally, the affi- Appellate Defender were causing inordi-
davits should include opinions from one nate delays in adjudicating appeals and There are at least two other reasons
or more experts in defense representa- violating due process, the judge conduct- why motions to withdraw based on
tion who can attest to the defender’s ed a lengthy hearing in order to deter- excessive caseloads should be as detailed
excessive caseload and is prepared to tes- mine the facts and heard from expert wit- as possible. As noted earlier, state rules of
tify in person at a later hearing. nesses, among others.75 criminal procedure do not normally
While the motion should undoubt- In a Florida case in which the public grant defenders the right to appeal the
edly express concerns for the Sixth defender sought to withdraw from 29 denial of motions to withdraw.77 Thus,
Amendment and effective assistance of appeals, the Florida Supreme Court appellate courts that exercise discretion
counsel, defenders should rely heavily on explained the difficulty of the courts in to hear appeals from denials of such
the state’s rules of professional conduct, deciding such matters, while illustrating motions are not apt to do so unless a full
the ABA’s new ethics opinion on exces- the importance of the record developed and compelling factual record is devel-
sive caseloads, ABA standards related to in the trial court: oped in the trial court. In addition, as
workload, and other relevant authorities one court has pointed out, “[i]f a public
specific to the jurisdiction. Conceivably, We acknowledge the public defender can make the requisite showing
a judge who is reluctant to find that a defender’s argument that the to be relieved of new cases, a record is
defender’s representation is likely to be courts should not involve established by which the legislature can
ineffective prior to a case actually being themselves in the management accurately assess the manpower needs of
heard may be more receptive to concerns of public defender offices. At the public defender system and the
ETHICS COMMITTEE
for defenders violating their ethical the same time, we do not financial burdens…. Appropriate leg-
duties, especially since by denying a believe that courts are obligated islative responses can then be devel-
motion to withdraw, or by refusing to to permit the withdrawal auto- oped.” 78
curtail the assignment of new cases, the matically upon the filing of a
judge may be deemed complicit in forc- certificate by the public defend- Civil Liability
S E N T E N C I N G M I T I G AT I O N :
ing a defender to behave unethically. er reflecting a backlog in the In light of the ABA’s ethics opinion,
Specifically, we suggest that the
motion to withdraw include objective
data such as the number of pending
W I N T H E B AT T L E A N D T H E WA R
cases, the rate at which new cases are typ-
ically received, the extent of support
services, and similar kinds of informa-
L AW O F F I C E OF MARCIA G. SHEIN
like nothing more than common sense,
but they also reflect lessons derived from
www.MsheinLaw.com
cases involving excessive caseloads. As
Phone: 404-633-3797 Fax: 404-633-7980
might be expected, when appellate and
Federal Criminal Law Center, 2392 North Decatur Road, Decatur, GA 30033
trial courts have granted relief from
excessive caseloads, the courts invariably
Success statistics and resume available on request
N OT
have had before them detailed factual
W W W. N A C D L . O R G DECEMBER 2006 17
it is worth considering the possible civil nate was engaged in conduct that posed her parents brought an action against a
liability of chief defenders, supervisors “a pervasive and unreasonable risk” of school district’s board of trustees under §
and board members who fail to support constitutional injury; (2) the supervisor’s 1983, claiming that plaintiff was sexually
a defender’s reasonable claim of excessive response to that knowledge was so inad- molested (her constitutional right to
caseload.79 While there are not many equate as to show “deliberate indifference bodily security violated) due to the
court decisions in this legal area, there is to or tacit authorization of the alleged board’s decision to transfer to plaintiff ’s
sufficient precedent to suggest that these offensive practices;” and (3) that there school a teacher who two years earlier
persons are subject to liability if they fail was an “affirmative causal link” between was accused of sexual indiscretions at
to support a defender’s efforts to with- the supervisor’s inaction and the partic- another school. In a two-step analysis,
draw, or otherwise fail to act, and their ular constitutional injury suffered by the the court first determined that, under
conduct leads to a violation of a client’s plaintiff.88 Monell, the board’s decision to transfer
constitutional rights. If the decision of Board Liability. There are no deci- the teacher constituted an official policy
the chief defender, supervisor or board is sions specifically addressing whether upon which liability could attach.98 In the
found to constitute “official policy” and members of an indigent defense board second stage, however, the court found
amounts to “deliberate indifference,” lia- can be held liable if they elect to support that the board was not ultimately liable
bility under 42 U.S.C. § 1983 is possible.80 the supervisor’s and/or chief defender’s because in making that decision, it did
Chief Defender/Head of Office. unreasonable decision not to decrease an not act with deliberate indifference.99 In
In Miranda v. Clark County,81 the Ninth assistant’s caseload, or for that matter, if other words, the board did not “ignore or
Circuit Court of Appeals held that the they elect to take no action at all. turn a blind eye” to the previous com-
head of a public defender office is subject However, cases regarding the liability of plaint about the teacher when the com-
to civil liability under § 1983 for policies local municipal governing boards pro- plaint surfaced, but rather, the board
that lead to a denial of an individual’s vide important guidance on this issue. 89 requested an investigation and recom-
right to effective representation. After the In Monell v. Department of Social mended a course of action.100 The court
defendant’s conviction was overturned Services,90 a leading Supreme Court deci- thus determined that the board’s precau-
on a claim of ineffective assistance of sion on municipal liability, the Court tions reflected concern, not indifference
counsel, the defendant brought a § 1983 held that a local governing body cannot or apathy.101
ETHICS COMMITTEE
action against the head of the county be held liable based simply on a theory of Accordingly, if members of a
public defender’s office, as well as the respondeat superior. Instead, liability defender board take no action in the face
county and assistant public defender arises only when there is a direct causal of excessive caseloads, the board may
who represented him, alleging a violation link between an official “policy” and the actually be inviting liability since it may
of his constitutional rights arising from alleged constitutional deprivation.91 In be seen as “turn[ing] a blind eye.”102 In
the office’s policies.82 The office allegedly Monell, female employees brought an Justice O’Conner’s concurrence in City of
allocated minimal funding to defendants action against, inter alia, the Board of Canton, she stated, “[w]here a § 1983
who failed polygraph tests and also Education challenging its policy requir- plaintiff can establish that the facts avail-
assigned the least-experienced defenders ing pregnant employees to take unpaid able to city policymakers put them on
to capital murder cases without provid- leaves of absence before medical reasons actual or constructive notice that the
ing training.83 required a leave of absence.92 The Court particular omission is substantially cer-
The court held that the chief held that a board may be sued directly tain to result in the violation of the con-
defender was subject to suit under § 1983 under 42 U.S.C. § 1983 “where the action stitutional rights of their citizens, the dic-
because in allocating funds based on that is alleged to be unconstitutional tates of Monell are satisfied.”103 Arguably,
polygraph test results, he was performing implements or executes a policy state- if an indigent defense board fails to act by
an administrative function that consti- ment . . . or decision officially adopted deciding not to review or investigate the
tuted state action.84 The court explained and promulgated by that body’s offi- denial of a staff attorney’s request to
that the office was adhering to “a policy cers.”93 Further, the Monell Court found withdraw, the board is acting with delib-
of deliberate indifference to the require- that the board’s action was an “official erate indifference. For a board to incur
ment that every criminal defendant policy” for which the Board could be liability, however, there must be “a high
receive adequate representation, regard- held liable under § 1983 for constitution- degree of fault on the part of city officials
less of innocence or guilt.”85 Likewise, in al violations.94 Other jurisdictions have before an omission that is not in itself
considering the county’s liability for held that even a single decision by a unconstitutional can support liability as
assigning inexperienced and untrained municipality’s properly constituted leg- a municipal policy under Monell.”104
attorneys to capital offenses, the court islative body can lead to § 1983 liability,
held that the allegations were sufficient as a single decision may constitute offi- A Call to Action
to create a claim that the county was cial policy.95 The ABA ethics opinion should be
deliberately indifferent to the constitu- The heightened “deliberate indiffer- understood as a call to action by both
tional rights of those clients accused of ence” standard that governs heads of individual defenders burdened with
capital offenses.86 offices and supervisors applies to boards excessive caseloads, as well as by supervi-
Supervisor Liability. Generally, the as well. While City of Canton v. Harris96 sors and heads of defender programs.
same standards of fault and causation applied the standard to a city, there are The sad truth is that it seems not to be.
that apply to the head of a public defend- cases applying the “deliberate indiffer- The opinion was issued in mid-July 2006
er office or to other municipal entities ence” standard to local governing boards, (although dated May 13, 2006), and we
govern a supervisor’s liability.87 such as school district boards, which are are writing this “conclusion” at the start
Specifically, three elements must be met arguably analogous to indigent defense of October. During the past two-and-a-
to establish a supervisor’s liability under boards. half months, however, the opinion seems
§ 1983: (1) the supervisor had actual or In Gonzalez v. Ysleta Independent to have created barely a ripple among
constructive knowledge that her subordi- School Dist.,97 for example, a student and defenders throughout the country.105
18 W W W. N A C D L . O R G THE CHAMPION
One of the few news articles dealing ers rarely challenge the leadership of 4. Gideon’s Broken Promise: American’s
directly with the ethics opinion appeared their office. Similarly, we do not know Continuing Quest For Equal Justice, American
in the Chicago Sun-Times on July 24, how many trial judges are willing to force Bar Association’s Standing Committee on
2006. The legal affairs reporter for the defender offices and individual defenders Legal Aid and Indigent Defendants 38 (ABA
newspaper interviewed several Cook to proceed with incompetent representa- 2004), available at http://www.abanet.org/
County assistant public defenders in tion when the case for relief is fully doc- legalservices/sclaid/defender/broken-
Chicago. One of those interviewed umented. Nor do we know if judges promise/fullreport. pdf (last visited Sept. 28,
“working in a misdemeanor courtroom would really force defense lawyers to pro- 2006).
laughed and said, ‘[w]e have 400 [cases] a ceed if the lawyers were to put on the 5. Id. at 38.
month! To be perfectly honest, we’re not record that they will furnish deficient 6. Id. at 39.
at liberty to reject any cases.’”106 Another representation in violation of both pro- 7. Gideon Undone: The Crisis in Indigent
public defender handling felony cases fessional conduct rules and the Sixth Defense Funding,ABA SCLAID,in cooperation
admitted she was “handling 140 cases at Amendment. Isn't it, finally, about time with the ABA’s Criminal Justice and General
a time.”107 She further acknowledged that that we found out? Practice Sections and NLADA 3 (ABA 1982),
she closed “‘a minimum of 20 a month. available at http://www.
What’s that – 240 a year? They could Notes abanet.org/legalservices/downloads/sclaid/
make this work better by giving us more 1. See ABA MODEL RULES OF PROF’L indigentdefense/gideonundone.pdf (last
money to hire more people. Courtrooms CONDUCT R. 1.1 (2006):“A lawyer shall provide visited Sept. 28, 2006).
that should have three people have two competent representation to a client. 8. Keeping Defender Workloads
or sometimes one. We’ve probably had Competent representation requires the Manageable, Indigent Defense Series #4,
10 people leave . . . since the end of last legal knowledge, skill, thoroughness and Bureau of Justice Assistance Monograph,
year and not be replaced.’”108 preparation reasonably necessary for the prepared by The Spangenberg Group
By their own admissions, these representation.” Model Rule 1.3 provides: “A (2001), available at http://www.
lawyers have excessive caseloads and no lawyer shall act with reasonable diligence ncjrs.gov/pdffiles1/bja/185632.pdf#search=
matter how dedicated and conscientious and promptness in representing a client.” % 2 2 k e e p i n g % 2 0 d e fe n d e r % 2 0 wo r k -
they are, they cannot furnish the kind of Although not mentioned in Formal Opinion loads%20manageable%22 (last visited Sept.
ETHICS COMMITTEE
competent and diligent representation 06-441, provisions of the ABA Model Rules 28, 2006).
required by the Illinois Rules of related to conflicts of interest also are impli- 9. Id. at 2.
Professional Conduct109 and that a client cated when a defender has an excessive 10. Letter from Ross Shepard, Defender
paying for legal services can expect to number of cases. Model Rule 1.7(a)(2) pro- Director, NLADA (2004-05), to ABA Standing
receive. Yet, as the Chicago Sun-Times hibits representation of multiple clients (i.e., Committee on Ethics and Prof’l
article so vividly demonstrates, substan- a “concurrent conflict of interest”) when Responsibility (“ABA Ethics Committee”), to
dard defense representation that fails to “there is a significant risk that the represen- George Kuhlman, Ethics Counsel, and Chair,
comply with the rules of professional tation of one or more clients will be materi- Marvin Karp (Jan. 7, 2005) (requesting that
conduct is so common among defenders ally limited by the lawyer’s responsibilities to ABA Ethics Committee issue a formal opin-
that it can be publicly admitted without another client. . . .” As stated by the Supreme ion regarding excessive defender case-
worrying that judges, disciplinary coun- Court of Florida, “[w]hen an attorney repre- loads); letter from Norman Lefstein, Indigent
sel or anyone else will pay any real atten- senting indigent defendants is required to Defense Advisory Group (IDAG) Chair and
tion. In Chicago and elsewhere in public make choices between the rights of the var- SCLAID member, to ABA Ethics Committee
defense, just as in the legal profession as ious defendants [being represented], a con- Chair, Charles E. McCallum (May 13, 2005)
a whole, defenders have all too often flict of interest is inevitably created.” In Re (requesting reconsideration of denial of
come to accept burdensome caseloads as Order on Prosecution of Criminal Appeals by request to issue ethics opinion on defender
normal, apparently believing that repre- the Tenth Judicial Circuit Public Defender, 561 caseloads). All private letters referred to in
sentation in compliance with profession- So.2d 1130, 1132 (Fla. 1990). this article are on file with the authors.
al responsibility rules and the 2. ABA Committee on Ethics and Prof’l 11. The meeting with the ABA Ethics
Constitution is somehow either inappli- Responsibility, Formal Op. 06-441 (May 13, Committee was attended by James R.
cable, unattainable, or both. 2006) (“Formal Op. 06-441”). Neuhard, Michigan State Appellate
We believe, however, that defenders 3. See,e.g.,Gideon v.Wainwright, 372 U.S. Defender and IDAG member; Norman
and their offices are not as powerless as 335, 341-45 (1963) (Sixth and Fourteenth Lefstein, IDAG Chair and SCLAID member;
they may think they are. And the ABA’s Amendments to the Constitution guarantee Bill Whitehurst, SCLAID Chair (2003-06); and
new ethics opinion tells them that they the provision of counsel to indigent persons Terrence Brooks, Director, ABA Division of
have a clear duty to take action both to accused of crimes in state felony proceed- Legal Services.
protect fully the legal rights of their ings); Argersinger v. Hamlin, 407 U.S. 25, 37 12. ABA Committee on Ethics and Prof’l
clients and themselves from furnishing (1972) (right to counsel applies to state mis- Responsibility, Formal Opinions 347 (Dec.1,
incompetent representation. But it takes demeanor proceedings in which actual 1981) and 96-399 (Jan. 18, 1996).These opin-
courage to stand up to authority – both imprisonment is imposed); In re Gault, 387 ions deal with the ethical obligations of civil
the authority of judges and sometimes U.S. 1, 41 (1967) (right to counsel extended legal aid attorneys to provide competent
the heads of defender programs. It also to state juvenile delinquency proceedings); representation when funding is inadequate
takes courage from the heads of defender Alabama v. Shelton, 535 U.S. 654, 662, 674 and caseloads excessive.
programs and their boards of directors. (2002) (right to counsel applies to state mis- 13. Formal Opinion 06-441 at 2 n.3.
Nationwide, we really do not know demeanor proceedings in which suspended 14. Id., at 3.
how many defender offices are adamant jail sentence imposed); Douglas v. California, 15. These are obvious questions that
in forcing their lawyers to furnish incom- 372 U.S.353,355-357 (1963) (right to counsel cannot be avoided in view of the Model
petent representation in violation of pro- applies to first criminal appeal to an appel- Rules requirement that a lawyer be compe-
fessional conduct rules because defend- late court). tent and diligent in representing her clients.
W W W. N A C D L . O R G DECEMBER 2006 19
Moreover, Comment 2 to Rule 1.3, which is 38. Id. 52. PROPOSED OR AMENDED RULES OF PROF’L
cited in the ABA’s Ethics Opinion, states that 39. Id. CONDUCT OF THE STATE BAR OF CALIFORNIA,
a lawyer’s workload “must be controlled so 40. Id. at 6 n.21. Both sections 1.13 (b) PROPOSED RULE 5.2 (Responsibilities of a
that each matter may be handled compe- and (c) are cited in the ethics opinion. But Subordinate Lawyer), available at http://cal-
tently.” MODEL RULE 1.3, cmt 2. section (c) clearly does not apply to the situ- bar.ca.gov/calbar/pdfs/public-com-
16. Formal Opinion 06-441 at 4. ation; it deals with the release of confidential ment/2006/Discussion-Draft.pdf (last visited
17. Id. information protected by Rule 1.6 to per- Sept. 29, 2006).
18. Id. sons outside the organization. MODEL RULES 53. Memorandum and Declaration of
19. Id. 1.13(b), (c) and 1.6. So the committee must Michael P. Judge submitted to the State Bar
20. Id. at 5. have thought that the language of 1.13 (b) of California Commission on the Revision of
21. Formal Opinion 06-441 at 5. was applicable to the excessive caseload sit- the Rules of Professional Conduct, dated
22. Id. at 5 n.15. uation. September 29, 2006 (on file with the
23. MODEL RULE 1.4(a)(3). 41. MODEL RULES 1.13(b). authors).
24. Formal Opinion 06-441 at 5. 42. “Boards of Trustees should be pre- 54. Id.
25. Id. at 1. cluded from interfering in the conduct of 55. State Bar of California Proposed
26. MODEL RULE 1.3, cmt. 1. particular cases.” ABA Standards for Criminal Formal Ethics Opinions, Standing
27. See Ariz. Rev. Stat. Ann. Sec. 17B, R. Justice: Providing Defense Services, Committee on Prof’l Responsibility and
1(a), N. 41 and 25 (2005); Haas v. Colosi, 202 Standard 5-1.3 (3rd ed. 1992). The commen- Conduct, Proposed Formal Op. Interim No.
Ariz. 56, 57, 40 P.3d 1249 (2002)(denial of tary to this black-letter statement explains: 97-0007 (Duty to Provide Competent
public defender’s motion to withdraw as “The primary function of a board should be Representation), available at http://
counsel is non-appealable, interlocutory to make general policy, not to attempt to calbar.ca.gov/state/calbar/calbar_generic.js
order and thus appellate review is available dictate the conduct of particular cases. p?cid=10145&n=57672 (last visited Sept. 29,
only by special action, which is discretionary Consistent with this principle, several public 2006).
with the appellate court). defender statutes explicitly prohibit interfer- 56. Telephone conversation between
28. See McKinney’s Consolidated Law of ence in the handling of specific cases by co-author Georgia Vagenas and Lauren
New York Annotated, C.P.L.R., Ch. 8, art. 4 defenders.” Id. at 20. See also NLADA McCurdy of the State Bar of California’s
ETHICS COMMITTEE
(Special Proceedings) (2006); McKinney’s Guidelines for Legal Defense Systems in the Office of Professional Competence (Sept. 29,
C.P.L.R., Ch. 8 §§ 7801-06 (Nature of U.S., Standard 2.13 (1976); NLADA Standards 2006) (confirming that Bar never issued
Proceedings) (2006); McKinney’s C.P.L.R. Ch. for the Administration of Assigned Counsel Formal Opinion Interim No. 97-0007).
8, § 7803 (Question Raised) (2006). Systems, Standards 3.3.3(a) and 3.2.2(c) 57. Proposed Formal Op. Interim No. 97-
29. See, e.g., Schwarz v. Cianca, 495 So.2d (1989). 0007, available at http://calbar.ca.gov/cal-
1208, 1209 (4th Dist. Fla. App. 1986) (trial 43. Formal Opinion 06-441 at 7, citing bar/pdfs/public-comment/2004/2004-09-
court denied public defender’s motion to Model Rule 5.1. See also Attorney Grievance 15_COPRAC_97-0007.pdf at 4-5, (last visited
withdraw and appellate court heard the Comm’n of Maryland v. Ficker, 706 A.2d 1045, Sept. 29, 2006).
case “upon an application for extraordinary 1051-52 (1998) (supervising lawyer violated 58. Ethics Advisory Opinion 04-12,
relief,” treating “the application as a petition Rule 5.1 by, inter alia, assigning too many South Carolina Bar (2004), available at
for writ of certiorari”). cases to supervised lawyer). http://www.scbar.org/member/ethics.asp
30. State v. Peart, 621 P.2d 780 (La. 1993). 44. Formal Opinion 06-441 at 7. (last visited Sept. 30, 2006).
In Peart, the Louisiana Supreme Court held 45. Another issue that we do not 59. Id.
that excessive caseloads and insufficient address in this article, but which we believe 60. Id.
support services for public defenders creat- is worthy of consideration, is whether a 61. Opinion No. 90-10, Ethics
ed a presumption that indigent defendants defender has any recourse when terminated Committee, Arizona State Bar (1990), avail-
were not being provided constitutionally because of a disagreement over caseload able at http://www.myazbar.org/ethics/
required effective assistance of counsel. The with a supervisor or head of a defender pro- pdf/90-10.pdf at 7 (last visited Sept. 30,
Louisiana Supreme Court heard the Peart gram. 2006).
appeal upon petition of Orleans Parish 46. MODEL RULE 5.2. 62. Id.
because the state’s constitution gives juris- 47. MODEL RULE 1.1. 63. Id.
diction to the state’s high court if a statute is 48. This prediction was offered by 64. Opinion No. 03-01, American
held unconstitutional.The trial court in Peart Norman Lefstein, one of the authors of this Council of Chief Defenders (ACCD), NLADA
ruled, inter alia, that the state’s system of article, during a November 2005 meeting in (2003), available at http://www.nlada.org/
indigent defense as provided for under Orlando of the NLADA’s American Council of DMS/Documents/1082573112.32/ACCD%2
Louisiana law was unconstitutional as Chief Defenders. 0Ethics%20opinion%20on%20Workloads.p
applied in Orleans Parish. 49. Michael P. Judge, the Los Angeles df (last visited Sept. 30, 2006).
31. Formal Opinion 06-441 at 6. County Public Defender, gave permission to 65. Id. at 5.Wisconsin Formal Opinion E-
32. MODEL RULE 1.16(c) (2006). the authors of this article to reference and 84-.11, reaffirmed in Wisconsin Formal
33. Formal Opinion 06-441 at 5. quote from the letters that he sent in oppo- Opinion E-91-3, is also consistent with the
34. Id. at 6. sition to the then proposed ABA ethics opin- new ABA opinion. Two other relevant ethics
35.“A subordinate lawyer does not vio- ion. Letter from Michael P. Judge to Bill opinions include Ethics Opinion 751, N.Y.
late the Rules of Professional Conduct if that Whitehurst, SCLAID Chair (2003-06), et al. 4 State Bar Assoc. Committee on Professional
lawyer acts in accordance with a supervisory (Dec. 2, 2005). Ethics (2002) (“an attorney representing a
lawyer’s reasonable resolution of an 50. Letter from Michael P. Judge to government agency may not undertake
arguable question of professional duty.” Michael S. Greco, ABA President 2-3 (Jan. 11, more than the attorney can competently
Model Rule 5.2(b). 2006). handle, but the attorney may accept his
36. MODEL RULE 5.2 cmt. 2. 51. See discussion supra notes 3-9 and superior’s reasonable resolution of an
37. Formal Opinion 06-441 at 6. accompanying text. arguable question of professional duty”);
20 W W W. N A C D L . O R G THE CHAMPION
and Legal Ethics Opinion 1798, Standing Commission.); Tenn. Sup. Ct. R. 13(e)(4)(D) tional deprivation. Id. at 386. The Court,
Committee on Legal Ethics, Va. State Bar (2006) (“The court shall not make an therefore, adopted the deliberate indiffer-
(2004) (a Commonwealth Attorney with an appointment if counsel makes a clear and ence requirement, holding that before a
excessive caseload that precludes compe- convincing showing that adding the local government entity may be held liable
tent and diligent representation and the appointment to counsel’s current workload for failing to act to preserve a constitutional
supervisory attorney who assigns the exces- would prevent counsel from rendering right,the plaintiff must demonstrate that the
sive caseload violate ethics rules). These effective representation in accordance with official policy evidences a deliberate indiffer-
opinions, too, are obviously consistent with constitutional and professional standards.”). ence to her constitutional rights. Id. at 386-
the ABA’s new ethics opinion on excessive 74. See State v. Peart, supra note 30. 93.
defender caseloads. In fact, footnote 2 of the 75. Green v. Washington, 917 F.Supp. 87. See Doe v. Independent School Dist.,
Virginia ethics opinion contains the follow- 1238 (N.D.Ill. 1996). 15 F.3d 443, 452-54 (5th Cir. 1994) (“The legal
ing sentence: “Although this opinion 76. Stitka v. State, 579 So. 2d 102, 104 elements of an individual’s supervisory lia-
addresses workloads of prosecutors, exces- (Fla. 1991). bility and a political subdivision’s
sive caseloads for public defenders and 77.See supra notes 27-30 and accompa- liability…are similar enough that the same
court-appointed counsel raise the same eth- nying text. standards of fault and causation should gov-
ical problems if each client’s case cannot be 78. Escambia County v. Behr, 384 So. 2d ern.”).
attended to with reasonable diligence and 147, 151 (England, C. J., concurring) (Fla. 88. Shaw v. Stroud, 13 F.3d 791, 798-99
competence.” 1980). (4th Cir. 1994).
66. ABA Ten Principles of a Public Defense 79.This section does not address the lia- 89. Indigent defense boards may be
Delivery System, Report to the ABA House of bility of an assistant defender sued under deemed to have the same characteristics as
Delegates No. 107 (adopted Feb. 5, 2002), state tort law for legal malpractice. See e.g., other municipal boards, such as governing
available at http://www.abanet.org/ Veneri v.Pappano,424 PA.Super.394,622 A.2d and policy-making functions. Indigent
legalservices/downloads/sclaid/indigentde- 977 (1993).See also Polk County v.Dodson,454 defense boards are general governing boards
fense/tenprinciplesbooklet.pdf (last visited U.S. 312, 325 (1981) (a public defender repre- which are empowered to establish general
Sept. 30, 2006). senting a client in the lawyer’s traditional policy,but may not interfere in the conduct of
67. Id. adversarial role was not a state actor under § particular cases. See ABA Standards for
ETHICS COMMITTEE
68. ABA Standards for Criminal Justice: 1983 and is “[h]eld to the same standards of Criminal Justice: Providing Defense Services,
Providing Defense Services (2d ed. 1979). competence and integrity as a private Standard 5-1.3; NLADA Standards for Legal
69. ABA Standards for Criminal Justice: lawyer”); Miranda v. Clark County, 319 F.3d Defense Systems in the U.S., Standard 2.11
Providing Defense Services 5-5.3 (3d ed. 465, 468 (2003) (public defender represent- (Functions of the Defender Commission).
1992), available at http://www.abanet.org/ ing a client in a traditional adversarial role is Defender commissions may provide input
crimjust/standards/defsvcs_toc.html (last acting under the ethical standards of a and advice to the Defender Director and may
visited Sept. 30, 2006). lawyer-client relationship and is held to the also remove the Director from office. NLADA
70. ABA Standards for Criminal Justice: same standards as a private attorney). Some Standard 2.11 (c) and (f).
Defense Function 4-1.3(e) (3d ed. 1993), jurisdictions, however, extend statutory 90. 489 U.S. 658, 98 S.Ct. 2018 (1978).
available at http://www.abanet.org/ immunity to public defenders, protecting 91. Id. at 690.
crimjust/standards/dfunc_toc.html (last vis- them against personal liability in malpractice 92. Id. at 658.
ited Sept. 30, 2006). actions. See Schreiber v. Rowe, 814 So. 2d 396 93. Id. at 690.The Monell Court held that
71. Providing Defense Services, (Fla. 2002). See also Kennedy v. Carlson, 544 the language of § 1983 “plainly imposes lia-
Standard 5-5.3 (b) (“Courts should not N.W.2d 1 (Minn. 1966); Dziubak v. Mott, 503 bility on a government that, under color of
require individuals or programs to accept N.W.2d 771, 773 (Minn. 1993). some official policy,“causes” an employee to
caseloads that will lead to the furnishing of 80. Section 1983 authorizes private par- violate another’s constitutional rights.” Id. at
representation lacking in quality or to the ties to enforce their federal constitutional 692. On the other hand, in a case against the
breach of professional obligations.”). rights against state and local officials and actual perpetrator of a constitutional viola-
72. See, e.g., Standards for Indigent municipalities in the federal and state tion,the standard of liability derives from the
Defense Services in Non-Capital Cases,Indiana courts. See 42 U.S.C. § 1983. particular constitutional provision at issue,
Public Defender Commission, Sects. J 81. 319 F.3d 465, 469-71 (9th Cir. 2003). not from § 1983. Daniels v. Williams, 474 U.S.
(Caseloads of Counsel) and K (Excessive 82. Id. at 466-67. 327, 329-30, 106 S.Ct. 662, 664 (1986);
Caseloads) (1995), available at 83. Id. at 467. Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d
http://www.in.gov/judiciary/pdc/docs/stan- 84. Id. at 469-70. In contrast, the court 745, 759 (5th Cir. 1993).
dards/indigent-defense-non-cap.pdf (last held that unlike the county and head of the 94. Id. at 690.
visited Sept. 30, 2006); Standards for Public public defender office, the assistant public 95. See also Pembaur v. City of
Defense Services, Washington Defender defender was not subject to § 1983 liability Cincinnatti, 475 U.S. 469, 480, 106 S.Ct. 1292
Association, Standard Three (Caseload Limits because he was not a state actor. Id. at 468. (1986).
and Types of Cases) (1989), available at The court explained that because the assis- 96. 489 U.S. 378, 386-93, 109 S. Ct. 1197
http://www.defensenet.org/resources/ tant enters into an attorney-client relation- (1989) (holding that a city’s failure to train
WDAstand.htm#Standard%20Three (last vis- ship, it places him in a role that exempts him subordinates may result in § 1983 liability
ited Sept. 30, 2006). from liability under § 1983. Id. at 468-69. where the failure amounts to deliberate
73. But see, e.g., Ind. Sup. Ct. R. 24(B)(3) 85. Id. at 470. indifference to the potential violation of a
(2006) (Workload of Appointed and Salaried 86. Id. at 471 (citing City of Canton v. constitutional right).
Capital Counsel), available at Harris, 489 U.S. 378, 388, 109 S.Ct. 1197 97. 996 F.2d 745, 746 (5th Cir. 1993).
http://www.in.gov/judiciary/rules/crimi- (1989). In City of Canton, the Supreme Court 98. Gonzalez, 996 F.2d at 753-54.
nal/#r24 (The Indiana Supreme Court adopt- made clear that to establish liability there 99. Id. at 756-60.
ed this provision based upon a recommen- must be a direct causal link between a 100. Id. at 762.
dation of the Indiana Public Defender municipal policy and the alleged constitu- 101. Id.
W W W. N A C D L . O R G DECEMBER 2006 21
102. Gonzalez, 996 F.2d at 762. 4/ai_n16642443(last visited on October 6, 109.ILL.RULES OF PROF’L CONDUCT,Rules 1.1
103. City of Canton, 489 U.S. at 396 2006). and 1.4 (The Illinois Rules are identical to
(O’Conner, J., concurring) (“The lower courts 107. Id. ABA Model Rules and require competence
that have applied the ‘deliberate indiffer- 108. Id. and diligence.) ■
ence’ standard we adopt today have
required a showing of a pattern of violations About the Authors
from which a kind of ‘tacit authorization’ by
city policymakers can be inferred.”) (Citing, Norman Lefstein is professor of law and Georgia Vagenas is the Assistant Coun-
e.g., Languirand v. Hayden, 717 F.2d 220, 227- dean emeritus at sel to the American
28 (5th Cir. 1983). See also, Jones v. City of Indiana University Bar Association’s
Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) School of Law - Standing Commit-
(defendants “must know about the conduct Indianapolis. Since tee on Legal Aid &
and facilitate it, approve it, condone it, or 1990, he has chaired Indigent Defen-
turn a blind eye for fear of what they might the Indiana Public dants. Previously,
see. They must act either knowingly or with D e f e n d e r she represented in-
deliberate, reckless indifference”). Commission. He is digent defendants
104. City of Canton, 489 U.S. at 392, 396. also a member of in appellate pro-
105. On September 16, 2006, however, the ABA Standing Committee on Legal ceedings, and also clerked for the Chief
an isolated, albeit significant development Aid and Indigent Defendants and chairs Justice of the New Hampshire Supreme
occurred in Oregon, where the Oregon State its Indigent Defense Advisory Group. Court.
Bar House of Delegates passed a resolution
to adopt ABA Formal Opinion 06-441 and Norman Lefstein Georgia Vagenas
instructed its state’s ethics body to issue a Professor of Law and Dean Emeritus 321 N. Clark Street
similar opinion applicable to Oregon Lawrence W. Inlow Hall Chicago, IL 60610
defenders.This development was due to the Indiana Univ. Sch. of Law - Indianapolis 312-988-5765
efforts of Ross Shepard, former Defender 530 West New York Street Fax 312-988-5483
ETHICS COMMITTEE
22 W W W. N A C D L . O R G THE CHAMPION