Department of Administration

Public Defender Agency

 
900 W. 5th Avenue
Suite 101
Anchorage, AK 99501
Main: 907.334.4400
Fax: 907.334.4440
www.doa.alaska.gov/pda

January 31, 2023

The Honorable Terrence Haas

Presiding Judge, Fourth Judicial District
Via Email

Re: Alaska Public Defender Agency Not Accepting New Appointments in Unclassified and Class A Felony Cases
Filed in Bethel Superior Court

Dear Judge Haas:

Beginning February 13, 2023, the Alaska Public Defender Agency will not be accepting new appointments in
unclassified and class A felony cases filed in Bethel Superior Court. The agency lacks the capacity internally to provide
representation in these matters consistent with its ethical and constitutional obligations. The agency asks that,
beginning February 13, 2023, you exercise your authority as presiding judge and under Administrative Rule 27(b)(2)
to direct superior court judges to refrain from appointing the agency to represent indigent defendants charged with
new unclassified and class A felonies. The agency will notify you when it is able to resume accepting appointments.

Alaska’s Rules of Professional Conduct direct a lawyer to provide competent representation and to act with reasonable
diligence and promptness.1 Competent representation requires a lawyer possess “the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.”2 This requires consideration of factors
relating to both the lawyer and the case.3 When a lawyer cannot provide competent representation, the lawyer must
decline the case.4

 
1
   Alaska R. Prof. Conduct 1.1(a) and 1.3.

2
Alaska R. Prof. Conduct 1.1(a).
3
Alaska R. Prof. Conduct 1.1. cmt (“In determining whether a lawyer employs the requisite knowledge and skill in a particular
matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s
training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible
to refer the matter to, or associate and consult with, a lawyer of established competence in the field in question.”).
4
Alaska R. Prof. Conduct 6.2(a); see also Alaska R. Prof. Conduct 6.2 cmt. (explaining that lawyer may seek to decline
appointment when good cause exists and that “[g]ood cause exists if the lawyer could not handle the matter competently”).
 

In addition to being bound by the rules of professional conduct,5 public defenders are constitutionally obligated to
provide their clients with effective assistance of counsel.6 Effective assistance of counsel requires performance at a
level displayed by one of ordinary training and skill in the criminal law;7 this includes the time and resources necessary
to deploy this training and skill.8 In considering whether representation meets this constitutional standard, the United
States Supreme Court has referenced national guidelines governing defense practice, like the defense practice
standards developed by the American Bar Association (ABA) and the National Legal Aid and Defender Association
(NLADA).9

The NLADA guidelines explicitly direct that, “[p]rior to handling a criminal case, counsel should have sufficient
experience or training to provide quality representation.”10 The commentary notes that “counsel has a duty to
determine whether counsel’s education, training and other experience are sufficient to allow counsel to provide quality
representation in a particular matter,” and it directs the reader to Guideline 1.3,11 which provides in part:

Before agreeing to act as counsel or accepting appointment by a court, counsel has an obligation to
make sure that counsel has available sufficient time, resources, knowledge and experience to offer
quality representation to a defendant in a particular matter. If it later appears that counsel is unable
to offer quality representation in the case, counsel should move to withdraw.12

 
5
   See CRIMINAL JUSTICE STANDARDS FOR THE DEFENSE FUNCTION § 4-1.2(c) (Am. Bar. Ass’n 2017) [hereinafter ABA DEFENSE
FUNCTION STANDARDS] (“Defense counsel should know and abide by the standards of professional conduct as expressed in applicable
law and ethical codes and opinions in the applicable jurisdiction.”); Alaska R. Prof. Conduct 6.2 cmt. (“An appointed lawyer has the
same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same
limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.”); Polk
County v. Dodson, 454 U.S. 312, 321 (1981) (“Held to the same standards of competence and integrity as a private lawyer, see Moore
v. United States, 432 F.2d 730 (3d Cir. 1970), a public defender works under canons of professional responsibility that mandate his
exercise of independent judgment on behalf of the client.”).
6
UNITED STATES CONST. amend. VI; ALASKA CONST. art. I, § 11; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (“It
has long been recognized that the right to counsel is the right to the effective assistance of counsel.”); Risher v. State, 523 P.2d 421, 423
(Alaska 1974) (“The mere fact that counsel represents an accused does not assure this constitutionally-guaranteed assistance. The
assistance must be ‘effective’ to be of any value.”).
7
See Risher, 523 P.2d at 424.
8
In re Edward S., 92 Cal.Rptr.3d 725, 740 (Cal. App. 2009) (“Under [the constitutional right to effective assistance of counsel],
the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions a reasonably
competent attorney would undertake. But he can also reasonably expect that before counsel undertakes any action at all he will make a
rational and informed decision on strategy and tactics founded on adequate investigation and preparation.”); State v. Peart, 621 So.2d
780, 789 (La. 1993) (“We take reasonably effective assistance of counsel to mean that the lawyer not only possesses adequate skill and
knowledge, but also that he has the time and resources to apply his skill and knowledge to the tasks of defending each of his individual
clients.”).
9
See Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (“We have long recognized that prevailing norms of practice as reflected in
American Bar Association standards and the like are guides to determining what is reasonable. Although they are only guides and not
inexorable commands, these standards may be valuable measures of the prevailing professional norms of effective representation. . . .”
(internal brackets, quotation marks, and citations omitted)); see also ABA DEFENSE FUNCTION STANDARDS, supra note 5;
PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION (Nat’l Legal Aid & Defender Ass’n 2006) [hereinafter NLADA
PERFORMANCE GUIDELINES].
10
NLADA PERFORMANCE GUIDELINES, supra note 9, § 1.2(b).
11
NLADA PERFORMANCE GUIDELINES, supra note 9, at § 1.2(b) cmt. at 28.
12
NLADA PERFORMANCE GUIDELINES, supra note 9, at § 1.3(a).

2 
 
 

The commentary to Guideline 1.3 cautions that a lawyer’s desire to take cases – even “to meet judicial or other
systemic demands” – “should never take precedence over objective reasons to believe that counsel is unqualified, due
to inexperience or lack of time/resources, to handle that particular case.”13

Only two lawyers in the agency’s Bethel office have the skill and experience to represent individuals charged with
unclassified and class A felonies; one other lawyer has the skill and experience to represent individuals charged with
class A felonies.14 And as you have previously recognized, the caseloads of the lawyers representing individuals
charged with unclassified and class A felonies are too high to allow them to represent each client consistent with their
ethical and constitutional obligations. Last year, the agency took steps to reduce the caseloads of its two most
experienced lawyers,15 but it has been unable to maintain the reductions it implemented and cannot further reduce
their caseloads to numbers consistent with their ethical and constitutional obligations if it continues to accept new
appointments in unclassified and class A felony cases.

The agency has lawyers in other offices with the skill and experience to represent individuals in these cases. Those
lawyers, however, currently lack the capacity to absorb additional unclassified and class A felonies charged in Bethel
Superior Court.16

 
13
   Id. at 32. The commentary adds that counsel is required to “honestly evaluate his or her experience and training,” but it notes
that
counsel, especially if inexperienced, may underestimate the complexity of a case at the initial stage, and find out in
mid-proceedings that he or she is unable to adequately represent the client, due to deficiencies in time, money, or skill.
While in some instances extra effort, assistance of more experienced counsel or further specialized training may suffice
to overcome counsel’s discovered deficiencies, time may not be available for counsel to acquire the necessary skill
before the case proceeds.
Id.
14
That lawyer, the third most experienced lawyer in the agency’s Bethel office, began representing individuals charged with class
A felonies in May 2022, but has submitted his resignation, effective May 31, 2023. The remaining lawyers assigned to the Bethel office
have between approximately three months and two years of criminal law experience.
15
These reductions included reassigning some felony and child welfare cases both within and outside the Bethel office, but this
provided the two lawyers an incomplete respite, and, as a result of new appointments, their caseloads have since returned to previous
levels. The agency’s two most experienced lawyers in Bethel have approximately 100 cases each, of which approximately 40 are
unclassified and class A felonies for each.
16
The agency’s trial lawyers with the training and experience to handle unclassified and class A felonies are at capacity. All
carry significant caseloads (on average, approximately 100 cases, including an average of 25 unclassified and class A felonies) and
approximately half are supervisors with the additional responsibility of managing a team of attorneys and staff or an entire office. Many
of these lawyers are already assigned some existing Bethel cases. While the caseloads of some of the agency’s other unclassified and
class A felony staff lawyers present ethical and constitutional problems similar to those its Bethel lawyers face, the agency has identified
resources for those offices that will reduce those caseloads in the near future, obviating the need, at this time, for the agency to decline
additional appointments in those jurisdictions; the agency notes, however, that it may need to take similar action in Palmer Superior
Court, if expected resources do not materialize in the next few weeks.

It is the agency’s goal to staff its offices with lawyers who live in the community in which they work; local staffing better
serves both the agency’s clients and the communities in which it provides representation. But for years, the agency has been unable to
hire a sufficient number of lawyers to fully staff its Bethel office with local lawyers. This has required the agency to use remote staffing,
assigning lawyers who live in communities other than Bethel to represent individuals charged in Bethel Superior Court either full-time
or on an ad hoc basis. This was not a decision the agency made lightly; rather, it was one made necessary by the recruitment and
retention challenges the agency has faced. Remote staffing, however, has its limits; even with its use, the agency has not been able to
identify the resources necessary to allow it to continue accepting appointments in unclassified and class A felony cases in Bethel Superior
Court.

3 
 
 

The agency also contracts with private lawyers to provide representation to individuals charged with unclassified and
class A felony cases. But it has not identified additional private lawyers who are willing to represent individuals
charged in Bethel Superior Court with unclassified and class A felonies,17 and the agency lacks the court system’s
authority to order private lawyers to assume representation of indigent individuals.18 As such, the agency will not be
accepting new appointments in unclassified or class A felonies beginning February 13, 2023. The agency recognizes
the effect this notice will have on the prompt assignment of counsel to indigent defendants facing serious charges,
but it has exhausted all available options.19 Declining these appointments is necessary to ensure the agency can provide
representation to its existing clients, in Bethel Superior Court and across the state, consistent with its constitutional
obligations and Professional Conduct Rules 1.1 and 5.1. The agency will notify you when the agency can resume
accepting appointments again.

Samantha Cherot
Alaska Public Defender

CC via email: Justice Maassen & Justice Winfree, SC; Meredith Montgomery, COA; John Skidmore, DOL; James
Stinson, OPA; Paula Vrana & Dave Donley, DOA; Dirk Craft, GOV; Joy Anderson, AVCP; John Bioff, KGC

 
17
The agency has a limited number of contractors with the skill and experience to represent individuals charged with unclassified
and class A felonies; these contractors typically accept only a few serious felony cases at a time, and they often restrict the jurisdictions
in which they will accept cases. The agency regularly contracts with a private lawyer to handle class B and C felonies in Bethel Superior
Court, who may agree to take one or two unclassified and A felonies.
18
See DeLisio v. Alaska Superior Court, 740 P.2d 437, 443 (Alaska 1987) (holding that court may not order lawyer to represent
indigent defendant without just compensation and explaining that compensation paid to lawyer providing court-ordered representation
will not “necessarily reflect any specific’s attorney’s normal rate of compensation, but rather will reflect the compensation received by
the average competent attorney operating on the open market”); Alaska R. Prof. Conduct 6.2 cmt. (providing that lawyer may only seek
to decline appointment for good cause and explaining that good cause includes financial reasons when the representation “would impose
a financial burden so great as to be unjust”).
19
See, e.g., Guideline 5, EIGHT GUIDELINES OF PUBLIC DEFENSE RELATED TO EXCESSIVE WORKLOADS, (AM. BAR ASS’N Aug.
2009) (detailing steps public defense provider should take to “avoid workloads that either are or are about to become excessive”,
including “notifying courts or other appointing authorities that the [public defense provider] is unavailable to accept additional
appointments”).

4