Keep Up The Good Work

The obligation of lawyers to provide competent and diligent representation to clients does not make an ex­ception for excessive case­loads, states a recent opinion issued by the ABA Standing Committee on Ethics and Professional Responsibility.

The opinion applies to all lawyers who represent indigent clients, but public defenders might find it particularly relevant.

In the decades since the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright established that indigent defendants in criminal cases have the right to be represented by counsel, most public defenders have struggled to manage huge workloads in offices that usually are understaffed and underfunded. As a result, they face ongoing conflicts between the ethical duty to provide the best possible representation to their clients and the more realistic hope of giving them any kind of representation at all.

The ethics committee recognizes the dilemma in Formal Opinion 06-441 (May 13). The committee notes that states have used various mechanisms, including public defenders, court-appointed lawyers and contract arrangements, to meet the constitutional mandate that indigent criminal defendants have counsel. “Because these systems have been created to provide representation for a virtually unlimited number of indigent criminal defendants, the lawyers employed to provide representation generally are limited in their ability to control the number of clients they are assigned,” the opinion states.

Nevertheless, all lawyers, even hard-pressed public defenders, are obligated under the ABA Model Rules of Professional Conduct to provide competent representation (see Model Rule 1.1), abide by certain client decisions (Rule 1.2), exercise diligence (Rule 1.3), and communicate with the client concerning the subject of representation (Rule 1.4). Lawyers also are obligated to adequately investigate, analyze and prepare cases; act promptly on behalf of clients; and communicate effectively in handling cases. “The rules provide no exception for lawyers who represent indigent persons charged with crimes,” the opinion states.

(The ABA Model Rules are the basis for most state professional conduct rules, which directly govern lawyers.)

Easing the Burden

There are steps an overworked lawyer can take to mitigate an overwhelming workload, the opinion states.

A lawyer may, for instance, decline new cases and seek to withdraw from existing cases. A lawyer may take similar steps with court-appointed cases, but if the court doesn’t grant the lawyer’s request, states the opinion, “the lawyer’s obligations under the rules remain: The lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to provide competent and diligent representation to the defendant.”

Supervisory lawyers in public defender offices can, and should, help ease the burden on their subordinates, says the ethics committee in its opinion.

ABA Model Rule 5.1 requires that a lawyer with direct supervisory authority over other lawyers take reasonable steps to ensure they are acting diligently with regard to all legal matters entrusted to them. If the supervising lawyer determines that any subordinate’s workload is excessive, the supervisor might transfer the subordinate’s cases or other responsibilities to other lawyers in the office, provide the subordinate with additional support and resources, defer new assignments for the subordinate, and support the subordinate’s efforts to withdraw from existing cases.

But if a supervising lawyer fails to take reasonable remedial action when a subordinate’s workload is interfering with efforts to provide competent and diligent representation, then, under Rule 5.1, “the supervisor himself is responsible for the subordinate’s violation of the Rules of Professional Conduct.”

The relentless pressure on public defenders is not likely to let up. Nor are ethics rules likely to give PDs a pass on the obligation to provide competent, diligent representation to clients. It’s not easy, but they have to find a way.

Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.

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