Ethics in Defense Counsel

Carol M. Langford

In 2010, at the height of the Great Recession, San Francisco Public Defender Jeff Adachi wrote a proposal to then-Mayor Gavin Newsom requesting a lift on the citywide hiring freeze. “We’re pretty severely underfunded,” Mr. Adachi explained, “which left us with a $1.7 million budget gap … We’ve refused over 300 cases in the past couple of months.”[1] Battling a $500 million budget deficit at the time, Mayor Newsom requested a 25 percent cut from every city department head. Mr. Adachi refused, arguing that the Sixth Amendment right to counsel was paramount, and ethically, he could not make cuts that would result in substandard representation.

To be fair, from the perspective of a defense attorney, budget cuts are not all bad. Practically speaking, delays caused by backlogged courts can be used by the defense to strategic advantage. When cases take years to go to trial, witnesses forget what they saw, change their minds, or even become locked up themselves. Old paperwork goes missing. Police officers retire or sometimes even become involved in scandal that immediately discredits them.

The New York Times recently reported on a murder case that took over five years to go to trial due to the quagmire in which the Bronx court system is currently engulfed.[2] A man was shot to death in a convenience store. The key witness was an off-duty police officer who happened to be present during the armed robbery gone wrong. Three years after the murder took place and before the case went to trial, that off-duty police officer, previously the perfect witness, was disciplined for his involvement in a ticket-fixing ring. At trial, the defense attorney was able to paint him as a liar and the result was a hung jury.

However, the effects of budget cuts have caused much more harm than help. Across the country, many public defenders are trying to get the message out that “we have nothing left to cut.”[3] A Washington, D.C., federal public defender, A.J. Kramer, recently summed up the ethical dilemma these lawyers are facing: “A lawyer might decide that they ordinarily in the past would have had an expert work on some aspect of a case and now they’re thinking, ‘Is that going to cost me a furlough day if I hire this expert—and [cost] everybody else in the office a furlough day?’ So it really becomes a terrible ethical dilemma.”

The ethical issues cannot be taken lightly. March of this year marked the 50th anniversary of Gideon v. Wainwright, the Supreme Court ruling that mandated that people facing criminal charges had the right to representation by an attorney, regardless of whether they could afford it. However, in 2013, sequestration at the federal level and budget crises at the state level have seriously chipped away at these Constitutionally-mandated services.

Ironically, sometimes efforts to cut costs to public defenders offices have actually ended up costing the government more money. Steven Nolder, a federal public defender in Columbus, Ohio, whose office was facing such severe budget cuts that he actually laid himself off instead of firing others, explained: “These are not luxury services that we’re providing … because they’re mandated, someone has to do it. We either do it, or the panel does.” Nolder was referring to a roster of private defense attorneys who are appointed by the court to represent indigent defendants when public defenders are not available. Attorneys on the panel sometimes have less experience and expertise than public defenders and actually end up costing the government more money.

Ethically, the budget slashing at public defenders offices all over the country has huge implications. Many offices have cut a lot of attorneys, while the caseloads coming into the offices are not decreasing. How can these lawyers meet their ethical duty to provide competent representation? The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued Ethical Opinion No. 06-411.

The Opinion requires public defenders to keep only manageable caseloads, and to seek relief in court if caseloads rise to a level which compromises the quality of work they are able to deliver to their clients. The Opinion puts an individual ethical obligation on all public defenders. The first step advocated by the Opinion is for individual public defenders with unmanageable caseloads to go to their supervisors for a reduction, then to the head of the office. However, if the office does not adequately address the problem, public defenders are required to seek relief in court.

The problem is, the way things usually play out when public defenders reduce their workload, is that the court is forced to hire more private attorneys to represent indigent clients. The services ultimately provided are thus more expensive, further straining the budget issues.

Frankly, I cannot see a way out of this very real problem. Giving the poor less than competent representation in a criminal matter cannot be countenanced in a just society, and it violates the ethics rules. Would the State Bar ever discipline a criminal defense lawyer who could not meet his obligations because of budget cuts? If they tried, they’d face the wrath of criminal defense lawyers everywhere. But that may be what it takes to cure this blight on the justice system.

Carol M. Langford is a lawyer in Walnut Creek who specializes in defending lawyers before the State Bar and law students in admissions hearings. She is an adjunct at U.C. Berkeley Boalt Hall School of Law in professional responsibility.


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