In a number of states, public defense attorneys have been disciplined for violating ethical rules by handling excessive caseloads and neglecting their clients. The California Supreme Court, for example, suspended two defenders for failures related to excessive caseloads. San Benito County hired a contract defender to do the bulk of its public de- fense work. The contract provided that the contractor could hire a subcontractor. The contract defender handled ap- proximately 1,000 lower level cases per year, plus some felony cases, while the subcontract lawyer hired by the con- tract defender handled approximately 250 felony cases. 95 According to the bar discipline case against the supervisor, the subcontract lawyer “did not provide adequate legal serv- ices and was frequently not adequately prepared for court.” 96 The contract defender was suspended for one year for the failure to properly supervise the subcontract lawyer. The subcontract lawyer was suspended for three years after admitting that she conducted “no discovery, conducted vir- tually no investigation, failed to obtain the victim’s rap sheet, filed no motions in limine, submitted no jury in- structions and was unable to concentrate during the trial” of a man who was charged with rape. 97 Similarly, the Washington Supreme Court disbarred a for- mer public defender from Grant County. The state bar dis- ciplinary notice regarding disbarment cites as one of the reasons for the disbarment the fact that the attorney was “voluntarily maintaining an excessive caseload while one of the lawyers under contract to provide indigent criminal de- fense in Grant County.” 98 The hearing officer found that the attorney’s “excessive caseload was prejudicial to the ad- ministration of justice.” 99 Recommendations — Excessive Caseloads 1. All persons representing indigent defen- dants should be subject to caseload limits that take into account the unique nature of the jurisdiction and its misdemeanor prac- tice and, under no circumstances, exceed national standards. Excessive caseloads dramatically diminish the effective- ness of representation. For this reason, as noted above, na- tional legal practice standards and ethical guidelines universally call for defender workload to be controlled. As one Tennessee respondent to the survey stated, “a better system would allow us to … have fewer clients, so we could focus more and earlier on the needs of each client.” A number of defender offices successfully set and maintain caseload standards. The Defender Association in Seattle, Washington, for example, maintains a caseload maximum of 380 cases per year per attorney in the Seattle Municipal Court. This limit is imposed both by city ordinance, which the Defenders helped to draft, and by collective bargaining agreement. 100 Similarly, the King County District Court
lawyers have an annual ceiling of 450, and the county budg- eting process is based on that number. The Defender Di- rector noted that in the last several years her office has managed to keep the district court caseloads lower than the 450 case credit ceiling. 101 In Massachusetts, the Committee for Public Counsel Serv- ices uses assigned counsel to handle most of its misde- meanor cases. The lawyers are limited to 300 cases a year and “[a]ny counsel who is appointed or assigned to repre- sent indigents within the private counsel division is pro- hibited from accepting any new appointment or assignment to represent indigents after he has billed 1,400 billable hours during any fiscal year.” 102 In Wisconsin, caseload limits for public defenders are set by statute. 103 The standards were, in part, based on a case- weighting study conducted in the early 1990s by The Span- genberg Group. 104 The statute acts as a “safety-valve.” 105 When caseloads reach the standards set forth in the statute, the public defender can obtain relief, and overflow cases are assigned to private counsel by the courts. 2. When caseloads become burdensome, de- fenders, pursuant to their ethical obliga- tions, should seek to discontinue assignments and/or withdraw from cases until the caseloads become manageable. To avoid a breach of the attorney’s ethical duty, a defender office or individual defender confronting an excessive case- load is obligated to move the court to cease appointment of new cases and, if necessary, move to withdraw from exist- ing cases. 106 In the past few years, a number of public de- fender offices have successfully petitioned courts to reduce their caseloads to prevent violations of the attorneys’ ethi- cal obligations and ineffective assistance. These cases pro- vide ample precedent for the duty of defenders to reduce caseloads to prevent breaches of their ethical obligations. In 2008, the public defender in Mohave County, Arizona, won a motion to withdraw from a series of felony cases. 107 The order granting the motion stated:
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The evidence presented at the hearing leaves the court with no doubt whatsoever that the attorneys in the Public Defender’s Office cannot continue representing the Defendants in these cases in light of their already existing caseload. … Requiring or even allowing the Public Defender’s Of- fice to remain as appointed counsel in these cases would likely compromise them from an ethical standpoint and de- prive the Defendants in these cases of their rights to effective representation. 108
The Miami-Dade County Public Defender also recently moved for appointment of other counsel in non-capital felony cases because he did not have enough attorneys to
Minor Crimes, Massive Waste
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