The Nexus between Independence and Workload Controls

An adequate public defense program must have binding workload standards for the system to function.  In fact, if there were a single criterion by which it was possible to evaluate the overall health of a jurisdiction’s public defense system, the existence and enforcement of strict workload controls might well be the most important benchmark of an effective system.  This is because public defenders do not generate their own work.

The workload of public defenders is determined by a convergence of decisions made by other government agencies and beyond the control of the public defense providers.  The legislature may criminalize additional behaviors or increase funding for new police positions that lead to increased arrests.  District attorneys can control their own caseload by dismissing marginal cases, diverting cases out of the formal criminal justice setting, or offering better plea deals.  But public defense attorneys are assigned their caseload by the court and are ethically bound to provide effective and uniform levels of service to each of their clients.

Since defenders do not control the number of cases and clients coming into the system, workload controls are a critical and necessary component of a public defense system.  These workload controls allow public defenders to spend a reasonable amount of time meeting the parameters of adequate attorney performance, including: meeting and interviewing a client; preparing and filing necessary motions; receiving and reviewing the government's responses to motions; conducting factual investigation, including locating and interviewing witnesses, locating and obtaining documents, locating and examining physical evidence; performing legal research; conducting motion hearings; engaging in plea negotiations with the state; conducting status conferences with the judge and prosecutor; preparing for and conducting trials; and sentencing preparation in cases where there is a guilty plea or conviction after trial.  [This is, of course, just a partial listing of ethical duties required under national and state performance guidelines.  See: Performance Guidelines for Criminal Defense Representation (NLADA, 1995).]

Controlling the number of cases a defense attorney can reasonably be expected to handle has benefits beyond the impact on an individual client’s case and life.  For example, the greatest percentage of criminal cases in this country requires public defenders (estimated at more than 80 percent nationwide).  Therefore, the system’s failure to adequately control workload will mean that too few lawyers are handling too many cases in almost every criminal court jurisdiction – resulting in a burgeoning backlog of unresolved cases.  This means that people waiting for their day in court fill local jails at taxpayers’ expense.  Forcing public defenders to handle too many cases often leads to lapses in necessary legal preparations.  Failing to do the trial right the first time results in endless appeals on the back end – delaying justice to victims and defendants alike – and ever-increasing criminal justice expenditures.  And, when an innocent person is sent to jail as a result of public defenders not having the time, tools, or training to effectively advocate for their clients, the true perpetrator of the crime remains free to victimize others and put public safety in jeopardy.

For all these reasons, Principle 5 of the ABA’s Ten Principles of a Public Defense Delivery System states unequivocally that defense counsel’s workload must be “controlled to permit the rendering of quality representation” and that “counsel is obligated to decline appointments” when caseload limitations are breached.  In May 2006, the ABA’s Standing Committee on Ethics and Professional Responsibility further reinforced this imperative with its Formal Opinion 06-441.  The ABA ethics opinion observes that “[a]ll lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently.”  Both the trial advocate and the supervising attorney with managerial control over the advocate’s workload are equally bound by the ethical responsibility to refuse any new clients whenever the trial advocate’s ability to provide competent and diligent representation to each and every one of her clients would be compromised by the additional work.  Should the problem of an excessive workload not be resolved by refusing to accept new clients, Formal Opinion 06-441 requires the attorney to move “to withdraw as counsel in existing cases to the extent necessary to bring the workload down to a manageable level, while at all times attempting to limit the prejudice to any client from whose case the lawyer has withdrawn.”

Given that the American Bar Association -- through promulgation of standards and adoption of ethics opinions -- so ardently requires caseload control for public defense systems, why do public defenders across the country continue to accept new assignments that force them to triage professional services to their clients because of work overload?   In most instances, the answer is that the act of challenging the court or county administration over high caseloads would result in a public defender’s employment being terminated.

This is why all pertinent national standards call for the independence of the defense function.  The first of the ABA’s Ten Principles explicitly limits judicial oversight and calls for the establishment of an independent oversight board whose members are appointed by diverse authorities, so that no single official or political party has unchecked power over the public defense function.  As stated in the U.S. Department of Justice, Office of Justice Programs report, Improving Criminal Justice Through Expanded Strategies and Innovative Collaborations: A Report of the National Symposium on Indigent Defense: “The ethical imperative of providing quality representation to clients should not be compromised by outside interference or political attacks.”  Courts should have no greater oversight role over lawyers representing defendants who are financially unable to afford private counsel than they do for attorneys representing paying clients.  The courts should also have no greater oversight of public defense practitioners than they do over prosecutors.  As far back as 1976, the National Study Commission on Defense Services concluded that “[t]he mediator between two adversaries cannot be permitted to make policy for one of the adversaries.”

The lack of independence negatively affects public defense systems in a variety of ways, depending on the type of system in place.  For public defender offices, independence is necessary to address the concerns that arise when hiring and firing of the chief executive is vested in an official whose interests at times will invariably be at odds with the principles of “zealous advocacy” that defenders are ethically bound to uphold.  For example, in the case of the judiciary there is tension between the ever-present pressure to “move cases” along on the docket and the dictates of “zealous advocacy” that include adequate time to investigate and otherwise prepare for trial.  If a judicial authority is the appointing authority for the public defender, the court can remove the chief public defender whenever it is not satisfied with the defense agency’s speed in case processing and simply appoint an executive more apt to do the court’s bidding.

In assigned counsel systems, the concern is with unilateral judicial power to select which lawyers will be appointed and to reduce or deny the lawyer’s compensation.  Defense attorneys (especially those who have practiced in front of the same judiciary for long periods of time) instinctively understand that their personal income is tied to “keeping the judge happy” rather than zealously advocating for their clients.  And, in jurisdictions that place a high emphasis on celerity of case processing, the defense attorneys understand they are not to do anything that will slow down the pace of disposing of cases or they will risk the pay that a judge has secured for them.  Through time, the defense attorney is indoctrinated into the culture of the judge’s courtroom, triaging the responsibilities all lawyers owe their clients.  While the vast majority of judges strive to do justice in all cases, political pressures, administrative priorities such as the need to move dockets, or publicity generated by particularly notorious crimes can make it difficult for even the most well-meaning judges to maintain the appearance of neutrality.

In contract systems, the concern focuses primarily on flat-fee contracts that pay a single lump sum for a block of cases, regardless of how much work the attorney does.  This creates a direct financial conflict of interest between the attorney and the client, in the sense that work or services beyond the bare minimum effectively reduce the attorney's take-home compensation.  Attorneys learn that filing motions increases the life of cases, reduces the attorney’s profit, and incurs the judge’s displeasure — which in turn may lead to outright termination of a contract.  Without regard to the necessary parameters of ethical representation, the attorney’s caseload creeps higher and higher, yet the attorney is in no position to refuse the dictates of the judge.  In short, if attorneys want to practice criminal law in these jurisdictions, they cannot refuse a judge’s request that they take every case for a single flat fee; otherwise they simply will not be able to practice their chosen vocation.

Having judges maintain a role in the supervision of public defense services can easily create the appearance of partiality — creating the false perception that judges are not neutral.  Policymakers should guarantee to the public that critical decisions regarding whether a case should go to trial, whether motions should be filed on a defendant’s behalf, or whether certain witnesses should be cross-examined are based solely on the factual merits of the case and not on a public defender’s desire to please the judge in order to maintain his or her job.  When the public fears that the court process is unfair, people tend to be less cooperative with law enforcement, less likely to appear as witnesses and for jury duty, and in general tend to be more cynical about the ability of government to treat all members of the community in a fair and evenhanded manner.

The same standards that call for independence from undue judicial interference also recognize that political interference is equally deleterious to a public defender system. Public defense delivery programs that fail to guarantee professional independence for public defenders, assigned counsel, or contract attorneys are fatally flawed.  These programs compromise the integrity of the attorney-client relationship and work to the detriment of public defense clients by providing them with counsel whose professional judgment may be influenced by concerns that are, at best, irrelevant to clients' adequate representation.

Many jurisdictions resolve the issue of independence by placing oversight of the public defense system with an independent non-partisan public defense commission.  NLADA’s Guidelines for Legal Defense Services, Standard 2.10 recommends that the duties of the independent commission include the selection of a chief administrator, monitoring of quality of services rendered, serving as a liaison between the legislature and the defender service, and ensuring the independence of the defender system. 

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Publication Date: 2010