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Thursday, September 13, 2007
Competence and Quitting
We have an interesting issue brewing here in my new hometown of Knoxville. The town's Public Defender, Mark Stephens, believes that his attorneys are so overburdened that they are not able to live up to their ethical obligation of competent representation. His proposed solution? The PD's office must stop accepting any new misdemeanor cases. Stephens hasn't made good on his threat yet, and he and the General Sessions Court judges in Knoxville are discussing possible options. But it will be interesting to see what happens. You can read about it here and here.
Obviously, the problem of public defenders being unable to manage their caseloads isn't unique to Knoxville. In one recent case, a poor public defender in Ohio was held in contempt after refusing to proceed to trial with a case he had just been assigned the day before. The judge's actions there strike me as unfair and potentially dangerous based on my limited knowledge of the facts. But I'm sort of torn as to what I think about Stephens' proposed, across-the-board solution. If these weren't public defenders, but were instead just regular old private lawyers, there wouldn't be any issue here: a lawyer can't ethically represent a client if the lawyer can't do so competently. But these obviously aren't just regular old private lawyers and we aren't just talking about one client. While I think I'm o.k. with Stephens threatening not to take any more misdemeanor cases if it produces the desired outcome, I'm not sure what I'll think if he actually pulls the trigger if and when his bluff(?) is called. I've brought the matter up a couple of times in my Professional Responsibility class, but I'm afraid I'm not doing the matter justice. Not being a criminal lawyer myself (indeed, I lost the one and only traffic case I ever tried), I'm curious what those in the criminal law field think about all of this.
Posted by Alex Long on September 13, 2007 at 03:07 PM | Permalink
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Comments
It's probably poor form to be the first to comment on one's own post, but a thoughtful reader passed along the following links concerning the Ohio case I mentioned. http://legalethicsforum.typepad.com/blog/2007/08/injustice-in-oh.html#comments http://legalethicsforum.typepad.com/blog/2007/08/more-injustice-.html#comments
http://legalethicsforum.typepad.com/blog/2007/09/more-on-public-.html#comments
Posted by: Alex Long | Sep 13, 2007 3:40:31 PM
It's easy to discuss whether Stephens' conduct is unethical, but look at the bigger picture - it is the government's responsibility to provide effective representation to all indigent clients. The government is failing, not Stephens.
Posted by: Audacity | Sep 14, 2007 8:22:47 AM
As you said, a lawyer has not only the right, but the positive duty to refrain from taking on more cases than he can adequately handle. There is nothing that exempts Public Defenders from that rule. In Washington, there is an advisory opinion from the Disciplinary Board that the head of a Public Defender agency MUST stop taking cases when they become overloaded. Remember, the harm when they withdraw is not that clients will go unrepresented--Gideon and its progeny prohibit that--it's that the state can't prosecute misdemeanors. I suspect the world will continue to rotate if that happens.
Posted by: Greybear | Sep 14, 2007 4:57:54 PM
I'm a PD in a very well funded county where we certainly still complain about caseloads, but its nowhere near unmanageable. I think pulling the trigger here will have the desired effect. If his office refuses to take any more misdemeanors, I assume the court will have two choices: appoint attorneys from a panel of privates who take appointed cases on a contract or case by case basis or start dismissing misdemeanors for failure to provide counsel. The first option is certainly more expensive than capitulating to the PD's demand for more attorneys, PD's can handle cases on a much lower per case cost than panel attorneys (and they're more effective) and the second option is just politically impossible.
I have a question you may be able to answer: is the PD there a government office or is it a private office that contracts with the state/county/city? If its the latter, the obvious concern is that the government may simply terminate the contract and give it to someone who has doesn't have an issue with providing less than competent counsel to indigent misdemeanor defendants and that, obviously, would be worse for everyone.
Posted by: Lee | Sep 15, 2007 2:14:52 PM
While the PD in this county is to be commended for standing up for the ethical obligation to defend the disadvantaged, I wonder if a better approach might not be to refuse a few of the highest manhour felony cases rather than all misdemeanors? After all, unless there is a contrary state law, Scott v. Illinois, 440 U.S. 367, allows the prosecution of misdemeanors without defense counsel as long as no actual incarceration is imposed. So the local prosecutor, who seems to be taking sides against the PD according to the news articles linked above, could proceed in many cases by announcing upfront that the government will seek only fines, commmunity service, and perhaps suspended sentences (Scott read literally seems to still allow these) and thus free the judge from any obligation to appoint counsel.
In felonies, however, the court must appoint counsel so there is no chance those defendants could be deprived of representation, however much it costs the state.
Posted by: Dave Glazier | Sep 17, 2007 3:23:09 AM
Lee,
I just found out that, at least here in Knoxville (I don't know about the rest of the state), the PD is elected.
Posted by: Alex Long | Sep 17, 2007 11:21:22 AM
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