THE

National Association of Criminal Defense Lawyers

CHAMPION

December 2006

ExcessiveDefenderCaseloads:ABA EthicsCommitteeWeighs In

hemost influential ethics body in the UnitedStates has now told criminal defense lawyers thathaving an excessive number ofcases can never bean excuse for failing to provide “competent”and “dili-gent”representation to their clients.

As stated inFormal Opinion06-441 bythe American BarAssociation’s Standing Committee on Ethics andProfessional Responsibility (“ABA Ethics Committee”),“[t]he [Model] Rules [ofProfessional Conduct] pro-vide no exception for lawyers who represent indigentpersons charged with crimes.”

Until this opinion,theABA Ethics Committee had never dealt with the perva-sivenational problem ofexcessive caseloads ofpublicdefenders and other lawyers who represent the indigentaccused in criminal proceedings.In cases where the Supreme Court has held thatthe U.S.Constitution requires that counsel be provid-ed,

excessive defender caseloads have been citedrepeatedly as a major impediment to effective represen-tation.In December 2004,for example,in

Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice

,the American Bar Association’s StandingCommitteeonLegal Aid and Indigent Defendants(“SCLAID”) concluded that “[f]unding for indigentdefense services is shamefully inadequate.”

As thecommittee’s report further explained,“[l]awyers fre-quently are burdened by overwhelming caseloads andessentially coerced into furnishing representation indefense systems that fail to provide the bare necessitiesfor an adequate defense (

e.g.

,sufficient time to prepare,experts,investigators,and other paralegals),resultingin routine violations ofthe Sixth Amendment obliga-tion to provide effective assistance ofcounsel.”

The reportalso found that in addition to violatingthe Sixth Amendment,“defense lawyers for the indigentsometimes are unable to…comply with[ethical]…requirements,and as a nation we toleratesubstandard representation in indigent defense that isnot acceptable practice on behalfofpaying clients.However,ethical violations routinely are ignored notonly by the lawyers themselves,but also by judges anddisciplinaryauthorities.”

Similarly,more than 20 yearsearlier,in

Gideon Undone: The Crisis in Indigent Defense Funding

,SCLAID complained of“public defenders[who] havetoomanycases and lack support personnel.”

Because excessive caseloads are so prevalent,sev-eral years ago the Bureau ofJustice Assistance oftheU.S.Department ofJustice commissioned TheSpangenberg Group,leading experts on indigentdefense,to prepare a special report on the subject.

In“Keeping Defender Workloads Manageable,”TheSpangenberg Group described the nature ofthe case-load problem around the country:Today,in some jurisdictions,public defenderoffices are appointed [in] as many as 80 per-cent ofall criminal cases.As populations andcaseloads have increased,many publicdefender offices have been unable to obtaincorollary increases in staff.Every day,defend-ers try to manage too many clients.Too often,the quality ofservice suffers.At some point,

W W W. N A C D L . O R G

T H E C H A M P I O N

BY NORMAN LEFSTEIN & GEORGIA VAGENAS

Restraining Excessive Defender Caseloads:The ABA Ethics Committee Requires Action

even the most well-intentionedadvocates are overwhelmed, jeopardizing their clients’con-stitutional right to effectivecounsel.The problem is not limited topublic defenders.Individualattorneys who contract toaccept an unlimited number of cases in a given period oftenbecome overwhelmed as well.Excessive workloads even affectcourt-appointed attorneys.Rules ofprofessional responsi-bility make it clear that every lawyer must maintain a reason-able workload.

Like all opinions ofthe ABA EthicsCommittee,the new ethics opinion isbased substantially upon the ABA ModelRules ofProfessional Conduct (“ModelRules”).But since state ethics rules large-ly track the ABA Model Rules,the newopinion is enormously importantbecause it furnishes potent ammunitionfor defenders seeking relieffrom exces-sive caseloads before judges and fromthose in charge oftheir offices.Theopinioncarefully explains how the pro-visions ofthe Model Rules must be readtogetherasanintegrated whole,and theway in which they direct a course of action for lawyers with excessive case-loads and forlawyerswith supervisory responsibilities.The decision ofthe ABA EthicsCommittee to address the problem of excessive defender caseloads resultedfrom efforts by SCLAID and the NationalLegal Aid and Defender Association(“NLADA”) to persuade the ABA EthicsCommitteetoprepare an opinion on thesubject.In addition to submitting writ-ten requests for such an opinion,

duringthe August 2005 ABA Annual Meeting inChicago the ABA Ethics Committee metwith a SCLAID delegation and anNLADA representative to discuss theSCLAID/NLADA request.

Initially the ABA Ethics Committeewas reluctant toissue an opinion on thesubject ofexcessive defender caseloads,asserting that the matter was adequately covered in prior ethics opinions relatedto civil legal aid lawyers.

Ultimately,however,the committee agreed that theproblem warranted their attention anddiffered from burdensome caseloads of legal aid lawyers,who normally are nei-thercourtappointed nor under con-tracts sometimes requiring them to rep-resent large numbers ofclients.

W W W. N A C D L . O R G

D E C E M B E R 2 0 0 6

E T H I C S C O M M I T T E E

The Struggle for Effective Indigent Defense Services

Remarks Delivered Upon Receipt of NACDL’s 2005 Champion of Indigent Defense Award

My commitment to the cause of indigent defense derives from a deep-seatedbelief that unless our adversary system of criminal justice is strong — unless itprotects the weakest and least powerful members of our society as well as the rich—the great promise of the Sixth Amendment’s right to counsel will remainunfulfilled.Iam sometimes asked how our country is progressing in implementing theright to counsel now that the

Gideon

decision is more than 40 years old and we arewell past virtually all of the Supreme Court’s other “right to counsel”landmark decisions.Clearly,we have made important progress during the past 40 years.In1963,which was two years after I graduated from law school,organized andvigorous defense services of the kind that exist today (in at least some jurisdictions)were just beginning to be formed.But in assessing the state of indigent defense inAmerica today,there is absolutely no reason to rejoice or even to be moderatelysatisfied.Despite the wealth of this country and its historic commitment to due processof law,implementation of the right to counsel for the indigent is — overall — in sadshape!In 2005,the major problems of America’s indigent defense system were setforth in an American Bar Association report that I co-authored,titled “

Gideon’s

Broken Promise:America’s Continuing Quest for Equal Justice.”The reportconcluded that,“40 years after

Gideon v.Wainwright

,indigent defense in the UnitedStates remains in a state of crisis,resulting in a system that lacks fundamentalfairness and places poor persons at constant risk of wrongful conviction.”Thereasons:“shamefully inadequate funding,”as well as “defense systems thatfrequently lack basic oversight and accountability,impairing the provision of uniform quality.”The report and its conclusions were based upon public hearingsheld in 2004 throughout the countryin recognition of

Gideon’s

40th anniversary.In recentyears,we all have witnessed a major development that hasmeasurably strengthened the case for substantial government support of effectivecriminal defense services.Permit me to illustrate with a reflection from my past.During the 1970s I headed the public defender service in Washington,D.C.,and I testified annually before congressional committees on behalf of the agency’sbudget.But it never occurred to me then that I should argue for adequate agencyfunding because of our absolute knowledge that innocent people are beingwrongfully convicted in our justice system,and that the risk of wrongful convictionis greatly increased when defendants are not well represented. Today,thanks to DNA evidence and the pioneering work of Barry Scheck andPeter Neufeld,as well as many others,we know that innocent people aresometimes convicted and that miscarriages of justice are an unfortunate reality of our justice system.We also know,as Janet Reno remarked when she was attorneygeneral:“In the end,a good lawyer is the best defense against wrongful conviction.” Thomas Jefferson once said that “eternal vigilance is the price of liberty.”Ourhistory suggests that no less vigilance is required to assure adequate defenseservices for the poor.Unless criminal defense lawyers are genuinely independent,adequately compensated and able to fully and effectively represent their clients,the capacity of government to overreach — and also to make mistakes — will notbe challenged.And the great protections of our Bill of Rights will not be realized forall people. The struggle on behalf of fully funded and effectiveindigentdefense servicesis not won with a single victory.Rather,it is a battle that needs to be constantlywaged one skirmish at a time.But it is an exceedingly vital struggle,well worth thefight.