Indigent defense - ethics
When the state does not appropriate funds to pay appointed attorneys, the appointed attorneys should refuse to work for free. The hardship that non-payment causes on the private attorney inevitably translates into ineffective assistance of counsel and a denial of the defendant's Sixth Amendment rights. Private attorneys who have businesses to run, bills to pay, and employee's paychecks to sign each week cannot bear the costs of indigent defense in this state. If the state wants to prosecute people, the state must bear the cost of their defense, indeed they are mandated to do so by the Constitution.
An example of the dilemma that refusing to fund appointed counsel creates is this: in a recent murder prosecution, I invested approximately 300 hours in the case, all of which was reasonable and necessary to provide an effective defense, through the trial - which resulted in a hung jury. In addition to the hours that I put into the case thus far, my paralegal has worked tirelessly on the defense and I will not be compensated for her time, an associate in my firm has donated over 100 hours and we will not be compensated for her time, and I paid a law clerk out of my pocket without asking for compensation. We essentially shut down the office for a total of three weeks before and during the trial, during which time we lost potential clients and we were not working on paying clients' cases. We still have to try this case again, and it is not the only case that we have been appointed to.
I'll go beyond the need for appointed lawyers to refuse cases in the face of insufficient funding, however. The public defenders and others charged with the defense of indigents in our state need to accept responsibility for ensuring that we are complying with the Sixth Amendment and providing effective representation.
Defense attorneys, public defenders included, have a duty to investigate each case fully, not to recommend a guilty plea to a client unless investigation and study of the case has been completed, and to maintain a manageable caseload so that our duty to each client can be fulfilled. From the ABA standards; Defense Function:
Standard 4-4.1 Duty to Investigate (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.
Standard 4-6.1 Duty to Explore Disposition Without Trial
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.Standard 4-1.3 Delays; Punctuality; Workload
(e) Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client's interest in the speedy disposition of charges, or may lead to the breach of professional obligations. Defense counsel should not accept employment for the purpose of delaying trial.
Professor Monroe Freedman, in his article, An Ethical Manifesto for Public Defenders, also suggests that public defenders have a duty to refuse cases when the attorney's caseload causes an inability to devote sufficient time to each case:
First, a lawyer who is assigned to represent a client in a criminal case, and who is unable to give competent and unconflicted representation to that client, is ethically required to decline the representation.Second, if the lawyer’s supervisor nevertheless orders her to take the case, the supervisor has committed a serious ethical violation, and the lawyer has an ethical obligation to report the supervisor’s unethical conduct to the appropriate disciplinary authority.
Third, the lawyer may be required under rules of the court, and therefore under ethical rules, to obtain permission of the court to decline the assignment. However, it would be an ethical violation for a judge to order the lawyer to undertake a case in which the lawyer would necessarily be violating both the Sixth Amendment and fundamental ethical rules relating to competent representation. The lawyer would therefore be required to report the judge’s unethical conduct to the appropriate judicial disciplinary authority.
Fourth, the lawyer would be required to put on the record in the case the fact that, because of commitments to other clients, the lawyer cannot give competent, conflict-free representation to the new client. This would establish a violation of the Sixth Amendment, because the entry of a guilty plea is a critical stage, regardless of whether the charge is a felony or a misdemeanor.
Fifth, the lawyer would be required to inform the client of any plea offer from the prosecutor. However, the lawyer would also be required to inform the client that her representation of the client cannot be performed competently and, specifically, that she does not know enough about the case to give the client any legal advice. Further, she would be forbidden to advise the client to accept the plea offer.
Sixth, if the client chose to accept the plea offer, the lawyer would be required to put on the record that she has not advised the client with regard to the plea because to do so would violate her ethical obligations of competent and conflict-free representation.
What would be accomplished if public defenders and other court appointed lawyers did these things? They would establish compelling records of the extent to which the constitutional promise of Gideon is being broken. They would give individual clients grounds to attack their sentences directly and collaterally. They would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel. They would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice. And they would make it more difficult for society and for the established bar to continue to deny due process.
The reality of Freedman's suggestions are: the public defender may be fired if he refuses to accept cases, and certainly if he files a grievance on his boss; and that attorney would have an even more difficult time if he files a grievance on the judge. Despite the obstacles, it is my opinion that the public defender should do what is necessary to preserve the Constitution and best serve their clients. If every public defender joined in demanding change, then change will happen. It takes the first to make a stand before others will follow.
Your job is to fight for the preservation of the Sixth Amendment for your clients. What is that job worth if you have to trample the Sixth Amendment in order to keep it?
Related posts:
Indigent defense - what can be done
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?
