3. Funding for misdemeanor defense should permit the maintenance of appropriate caseloads. To the extent misdemeanor offenses carry a possibility of incarceration, the legislative body with responsibility for funding the public defender program must appropriate funds that permit defenders to maintain reasonable case- load limits. Funding should be based on estimates of the number and types of cases the program is expected to han- dle in the upcoming year, with the expectation that each de- fender will have a caseload appropriate for the jurisdiction while not exceeding national standards. 145 In the event that the caseload increases, the program should be permitted to seek supplemental funds, or be permitted to stop accepting cases in order to maintain appropriate caseloads. A number of jurisdictions have been able to maintain case- load limits by tying funding to the number of cases to which the public defender is assigned. As previously noted, in Washington, the King County district court lawyers have an annual caseload limit of 450 cases, and the county budg- eting process is based on that number. 146 In Colorado, the limits are based on a comprehensive, jurisdiction-specific case weighting study that occurred in the mid-1990s, which has been periodically updated. 147 “The Colorado legislature has accepted the formula for purposes of both budgeting and analyzing the fiscal impact of proposed legislation.” 148 4. Counties and states should discontinue the use of flat-fee contracts as a means of pro- viding indigent defense services. The primary goal of flat-fee or fixed price contracting is not quality representation but cost limitation. These con- tracts require an attorney to handle an undefined number of cases for a fixed price, or establish a fixed price per case and allow an attorney to accept an unlimited number of cases. In both instances, flat-fee contracts encourage attor- neys to process cases quickly. If an attorney gets to count the case — and receive payment — once the case is ar- raigned, the attorney is motivated to dispose of the case as quickly thereafter as possible to maximize profit. These contracts discourage investigation, consultation of experts or specialists, and taking cases to trial. Accordingly, flat-
fee contracts create a conflict of interest between attorney and client, in violation of well-settled ethical proscrip- tions. 150 Taking the lowest bidder in a flat-fee contract process serves only to emphasize that the primary concern is cost containment and not the constitutional obligation to the defendants. 151 Recently in Grant County, Washington, a defendant who was wrongly convicted received a $3 million verdict after a federal court jury found that his attorney’s representation was inadequate. 152 The attorney had a flat-fee contract to handle indigent defense cases in the county and carried a caseload of more than 500 felony cases a year. He refused to hire an investigator or other experts, or to pay for a poly- graph in the defendant’s case. 153 In part because of the kind of conduct involved in this case, the Washington Supreme Court, in September 2008, amended the Rules of Professional Conduct regarding conflicts of interest with current clients to specifically bar flat-fee contracts where the contract requires the attorney to pay for any conflict attorney, investigative costs, or ex- pert fees out of the contract. 154 The explanation of the new rule stated:
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An indigent defense contract by which the contracting lawyer or law firm as- sumes the obligation to pay conflict counsel from the proceeds of the con- tract, without further payment from the governmental entity, creates an acute fi- nancial disincentive for the lawyer either to investigate or declare the existence of actual or potential conflicts of interest re- quiring the employment of conflict coun- sel. For this reason, such contracts involve an inherent conflict between the interests of the client and the personal in- terests of the lawyer. These dangers war- rant a prohibition on making such an agreement or accepting compensation for the delivery of indigent defense services from a lawyer that has done so. 155
According to the press report following the verdict, as a re- sult of the new ethics rule, “17 other rural Washington counties began dumping their ‘flat-fee’ contracts with con- tractor public defenders.”
“The ‘Rawhide’ 149 imagery [of cattle being herded] is perfect. If you turn off the sound and watch Manhattan Criminal Court, there is no way you don’t think it is a cattle auction.”
Misdemeanor Defense In Practice
The extraordinarily high caseload numbers in misdemeanor practice inevitably require lawyers to cut corners. Site teams witnessed and were told the same things across the country: defenders do not have enough time to see their clients or to prepare their cases adequately, there are no wit- ness interviews or investigations, they cannot do the legal
— A veteran New York attorney.
Minor Crimes, Massive Waste
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