Public Defender Revolution: The How-To Series

Carol D at Public Defender Revolution is setting the gold standard for public defender advocacy and activism — at least in the blogosphere. I don’t want to demean or give short shrift to all those great activists and advocates out there about whom I know nothing, but one of Carol D’s great innovations is simply that she’s taking the fight online, putting it out for all of us to see and for all of us to join in. That, quite simply, is awesome.

If you’re a public defender, you really should read everything at Public Defender Revolution. You may not agree with all of it, but whether you agree or not you should comment and contribute to what Carol D is trying to do, which is (at least from my perspective), to speak honestly about the challenges and difficulties of being a public defender, and to encourage her colleagues to stand up for themselves, for all of us, and for our clients, to try to improve indigent defense in this country.

Nowhere is this effort more obvious or helpful than in Public Defender Revolution’s “How to Be a Public Defender Revolutionary” series, which begins with a discussion of ABA Formal Opinion 06-441. That opinion discusses the ethical duties of overworked public defenders, and, as Carol D explains, gives public defenders “the authority and ammunition to end the wide-spread reality of untenable caseloads.” And she’s right, but only if public defenders all stand up together. The opinion states:

If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.

Thus, public defenders have the ABA’s support (based on the ABA’s interpretation and application of the Model Rules of Professional Conduct) to stand up and say they have too many cases and can’t take anymore. The problem comes when the court or your supervisors just don’t care — you complain, you cite this opinion, and they say “tough luck.” That situation is addressed on page 6 of the opinion:

If the supervisor fails to provide appropriate assistance or relief, the lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender’s office.

Finally, if you get no satisfaction from the top of your chain of command, your last result is to move to withdraw (which is also your remedy if you’re working in a court-appointed system rather than a public defender office where your supervisors assign your cases). But again, if the judge says “tough,” you’re stuck. At that point, you have a duty to your clients and if you’re truly overloaded, it’s a duty you won’t be able to fulfill. What do you do then?

We all know public defenders should never reach that point; they should stand up and say “enough” long before they’ve reached that breaking point. But we don’t, and that’s exactly what Carol D’s “How-To” series is meant to address: we all have to know the rules and we have to use them — together — or they won’t work for us.

Most of the time overworked public defenders don’t stand up and refuse to take more case because if we do we’ll be in trouble; we’ll be the “bad guy” or the “lazy lawyer” because we’ll be acting alone. We stand up, and we’re singled out as the bad guy, and who knows what the consequences will be? And it’s that feeling of isolation that keeps the system functioning because so long as there are public defenders who will work themselves to the bone and sacrifice everything else in their lives to stay on top of massive and inhuman caseloads, supervisors and judges everywhere will use those “superstar” public defenders as examples, their measuring sticks for what’s possible, so that when one of the rest of us complains they can point to the “superstar” and say, “She’s not complaining and she has more cases than you do. What’s *your* problem?” Thus the problem continues.

In How to Be a Public Defender Revolutionary Carol D discusses the rules and tools we need to stand up together, around the country, to say to excessive caseloads:

You can’t make me.

So far, the series has four parts: Part I, Part II, Part III, and Part IV. Read them all and join the revolution.