ABA ETHICS OPINION AFFIRMS PUBLIC DEFENDERS MUST REFUSE NEW CASES IF WORKLOAD IS EXCESSIVE
May Be Required to Withdraw from Existing Cases

CHICAGO, July 20, 2006 - Public defenders, lawyers who represent indigent criminal defendants, have an ethical duty to refuse new cases if they believe their workloads are so excessive they cannot competently represent their clients, according to a new ethics opinion issued by the American Bar Association.

Public defender offices are agencies created to satisfy the Constitutional requirement that government provide defense lawyers for people charged with crimes who cannot afford to hire their own lawyers. As the opinion notes, “Because these systems have been created to provide representation for a virtually unlimited number of indigent criminal defendants, the lawyers employed to provide representation generally are limited in their ability to control the number of clients they are assigned.”

But ABA Model Rules of Professional Conduct require lawyers to control their workloads so that each matter can be handled competently. When their caseloads become too large, they should decline new assignments, said the ABA Standing Committee on Ethics and Professional Responsibility.

Opinion 06-441 notes that public defenders can receive case assignments either from judges or from their supervisors.

Defenders at risk of having caseloads that would prevent their competent representation should ask assigning judges to temporarily stop giving them new cases. If cutting off new cases does not solve the problem, they should ask judges to permit them to withdraw from enough previously assigned cases to allow “provision of competent and diligent representation to the remaining clients.”

Defenders who believe they have been appointed to too many cases within their own office might work with their supervisors to refuse new cases or transfer non-representational responsibilities or current cases to other lawyers. If the supervisor unreasonably fails to provide appropriate relief, the lawyer should advance up the chain of command to the head of the office, appeal to the governing board of the office, or file a motion to withdraw from with the court, according to the opinion.

Ultimately, defenders who are not allowed to withdraw from cases must obey court orders while taking all steps reasonably feasible to insure competent and diligent representation.

The opinion also identifies relevant responsibilities of supervising lawyers: to monitor the workloads of subordinate lawyers; and to assure the subordinates are diligent, communicating with their clients and competently representing them. Supervisors should transfer responsibilities or cases to other lawyers, support the subordinate’s efforts to withdraw from cases or provide the subordinate with additional resources, when necessary for the subordinate to provide competent representation, the committee said.

While noting that supervisors “frequently must balance competing demands for scarce resources,” the opinion states the supervisor is responsible for a subordinate’s violation of the ethics rules unless it is “reasonably arguable” that the subordinate’s workload is not excessive.

The opinion says many factors determine when a caseload becomes excessive, including numerical standards as well as the complexity of cases, availability of support services, the experience and ability of individual lawyers and the lawyer’s duties other than representing clients. The ABA has not adopted numerical standards, and emphasizes that numerical standards “are not the sole factor in determining if a workload is excessive.” The association has referenced in criminal justice and indigent defense policies the standards developed in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals, a group which no longer exists, as a “rough measure” that has “proven resilient over time.”

The NAC standards recommended the following annual caseload maximums per criminal defense lawyer: 150 felonies, 400 misdemeanors, 200 juvenile cases, 200 mental commitment cases or 25 appeals.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.

ABA members may download complimentary copies of ethics opinions for a period of one year after they are released, at the Center for Professional Responsibility’s website, http://www.abanet.org/cpr/ethicopinions.html. Information about how non members can obtain copies of opinions also is posted there.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

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