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12345678910111213141516171819202122232425SUPERIOR COURT OF WASHINGTON FOR XXXXXXX COUNTYSTATE OF WASHINGTONPlaintiff,vs.AAAA XXXXXXXX,Defendant.Case No: 02-1-00721-1MEMORANDUM OPPOSINGCONTEMPT FINDINGThe court set this case for trial today despite defense counsel Carol Defender’s well-grounded motion for continuance. Through no fault of her own, Ms. Defender cannot besufficiently prepared for trial to fulfill her ethical duty of competent representation, RPC 1.1,and her constitutional duty of effective assistance of counsel. U.S. Const. amend. VI; Wash.Const. art. 1, § 22.Ms. Defender carries a crushing caseload and has been in trial literally almost everyweek for the past three months. She has shown exceptional diligence in working long hours of overtime in the attempt to keep up with an impossible workload. This case involves amultiplicity of factual and legal issues and requires extensive investigation and intensive expertwitness interviews and preparation. Due to simple lack of time resulting from an overwhelming

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12345678910111213141516171819202122232425workload, Ms. Defender has been literally unable to prepare this case for trial as her ethical dutyand the Sixth Amendment require. The court therefore cannot hold her in contempt.With exceptions not relevant here, “contempt of court” occurs only on intentional“[d]isobedience of any

lawful

judgment, decree, order, or process of the court.” RCW7.21.010(1)(b) (emphasis added). It cannot be lawful to require defense counsel to proceed totrial when she is unable, through no fault of her own, to fulfill her ethical and constitutionalduties. The Sixth Amendment right to effective assistance of counsel means “the lawyer notonly possesses adequate skill and knowledge, but also that he has the time and resources toapply his skill and knowledge to the task of defending each of his individual clients.”

State v. Peart

, 621 So. 2d 780, 789 (La. 1993).Therefore, “where defense counsel places the trial court on notice that continuedrepresentation places counsel in an ethical dilemma, and counsel raises issues of his client’sconstitutional rights, the court must conduct a careful and in-depth review into all the facts andcircumstances.”

State v. Williams

, 704 N.E.2d 12, 14 (Ohio Ct. App. 1997). When the recorddemonstrates that defense counsel declines to proceed with trial because he or she is unable to provide effective assistance through no fault of his or her own, a trial court abuses its discretion by holding counsel in contempt.The record demonstrates Ms. Defender has “not been lacking in diligence in preparing”her cases and she cannot “give constitutionally adequate representation” to her client because,among other issues, she has been “unable to interview” key expert witnesses.

Hughes v.Superior Court

, 164 Cal. Rptr. 721, 722 (Ct. App. 1980). In these circumstances, a court abusesits discretion in holding counsel in contempt:Clearly petitioner's client was entitled to effective assistance of counsel, oneaspect of which is the investigation and presentation of crucial defenses. To forcean unprepared counsel to proceed to trial regardless of the reasons for the lack of preparedness would result in a violation of constitutional rights. "(I)t is a denial of the accused's constitutional right to a fair trial to force him to trial with suchexpedition as to deprive him of the effective aid and assistance of counsel." If

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12345678910111213141516171819202122232425counsel had obeyed the court's order to proceed, his compliance would havedenied his client a fair trial.

Id.

at 722-23 (citations omitted). Ms. Defender has demonstrated “sufficient reason” for refusingto proceed with trial: “protection of [her] client’s constitutional right to adequate representationat trial” and therefore cannot be in contempt.

Id.

at 723 (reversing contempt finding).To order Ms. Defender to trial would require her “to violate her professional obligation”to her client “both under the state and federal Constitutions” and the Rules of ProfessionalConduct.

In re Sherlock

, 525 N.E.2d 512, 519 (Ohio Ct. App. 1987). The court cannot requireMs. Defender “to violate her duty to her client as the price of avoiding punishment for contempt.”

Id.

at 521. “Given the glut of cases public defenders are expected to handle,” andthe specific record here, where Ms. Defender has been in trial constantly for the last threemonths, “it is reasonable to conclude” she has had “too little time” to “investigate the case and prepare for trial.”

Id.

at 519. As a result, Ms. Defender, “through no fault of her own” is“incapable of rendering effective assistance of counsel” and cannot be held in contempt.

Id.

(reversing contempt finding against public defender unable to proceed to trial due to lack of timeto prepare).The court cannot hold Ms. Defender in contempt where she is “unable to comply” with anorder to go to trial without violating her ethical and constitutional duties.

Rainier Nat’l Bank v.McCracken

, 26 Wn. App. 498, 511 (1980). An attorney “should not stand in danger of imprisonment for asserting respectfully what he considers to be lawful rights,” and at the least isentitled to “an opportunity for review by an appellate court” before contempt is imposed.

Dikev. Dike

, 75 Wn.2d 1, 16 (1968).

Cf.

Seventh Elect Church v. Rogers

, 102 Wn.2d 527, 536 (1984)(“When an attorney makes a claim of privilege in good faith, the proper course is for the trialcourt to stay all sanctions for contempt pending appellate review of the issue.”).