A Public Defender Stands Up, and Faces Contempt 89 O n August 15, 2007, a young public defender in Portage County, Ohio, named Brian Jones was as- signed to represent a defendant charged with misdemeanor assault. The case was set for trial the following day. Because of his caseload, the defender had to meet with six other clients the next day, before even look- ing at the defendant’s file. He then met with the defendant for twenty minutes. When the case was called for trial, the defender explained to the judge that he would need a continuance in order to prepare for trial. The judge responded that the defender could have the lunch hour to prepare. The defender attempted to argue that he needed to speak with witnesses other than those the state had subpoenaed, but the judge refused the postponement. When court reconvened, the defender argued again that he should be permitted time to prepare, but the judge ordered the trial to commence. The defender waived opening statement, informing the judge that he would not be able to participate in the trial because he was not sufficiently prepared. The judge held the defender in contempt and ordered him taken into custody. A hearing was later held on the contempt, and an ethics expert testified that the defender would have been in violation of his ethical obligations had he agreed to proceed to trial unpre- pared. Despite this testimony, the judge upheld the contempt citation. In upholding the decision, the judge noted that defenders plead cases and take cases to trial with minimal preparation all the time. 90
23
The defender appealed, and the Court of Appeals reversed the conviction, stating:
Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as re- quired by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution. It would have been unethical for appellant to proceed with trial as any attempt at rendering effective assistance would have been futile. Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared. 91
More recently, the ABA issued a similar ethics opinion, finding:
The ABA Opinion further concluded that if a supervi- sor fails to relieve an individual defender of an over- whelming caseload, the individual defender must pursue the matter further, including seeking relief directly from the court. 93
All lawyers, including public defenders and other lawyers who, under court ap- pointment or government contract, rep- resent indigent persons charged with criminal offenses, must provide compe- tent and diligent representation. If workload prevents a lawyer from pro- viding competent and diligent repre- sentation to existing clients, she must not accept new clients. If the clients are being assigned through a court appoint- ment system, the lawyer should request that the court not make any new ap- pointments. Once the lawyer is repre- senting a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. …[L]awyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the in- dividual lawyers. 92
“There can be no question that taking on more work than an attorney can handle adequately is a violation of a lawyer’s ethical obligations. … No one seriously questions that a lawyer’s staggering caseloads can result in a breach of a lawyer’s duty of competence.”
— Arizona Ethics Opinion 90-10. 94
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
Made with FlippingBook Online document maker