T H E National Association of Criminal Defense Lawyers

C H A M P I O NDecember 2006

ExcessiveDefenderCaseloads: ABA EthicsCommitteeWeighs In

The most influential ethics body in the UnitedStates has now told criminal defense lawyers thathaving an excessive number of cases can never be

an excuse for failing to provide “competent” and “dili-gent” representation to their clients.1 As stated inFormal Opinion 06-441 by the American BarAssociation’s Standing Committee on Ethics andProfessional Responsibility (“ABA Ethics Committee”),“[t]he [Model] Rules [of Professional Conduct] pro-vide no exception for lawyers who represent indigentpersons charged with crimes.”2 Until this opinion, theABA Ethics Committee had never dealt with the perva-sive national problem of excessive caseloads of publicdefenders 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,3 excessive defender caseloads have been citedrepeatedly as a major impediment to effective represen-tation. In December 2004, for example, in Gideon’sBroken Promise: America’s Continuing Quest for EqualJustice, the American Bar Association’s StandingCommittee on Legal Aid and Indigent Defendants(“SCLAID”) concluded that “[f]unding for indigentdefense services is shamefully inadequate.”4 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), resulting

in routine violations of the Sixth Amendment obliga-tion to provide effective assistance of counsel.”5

The report also 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 behalf of paying clients.However, ethical violations routinely are ignored notonly by the lawyers themselves, but also by judges anddisciplinary authorities.”6 Similarly, more than 20 yearsearlier, in Gideon Undone: The Crisis in Indigent DefenseFunding, SCLAID complained of “public defenders[who] have too many cases and lack support personnel.”7

Because excessive caseloads are so prevalent, sev-eral years ago the Bureau of Justice Assistance of theU.S. Department of Justice commissioned TheSpangenberg Group, leading experts on indigentdefense, to prepare a special report on the subject. 8 In“Keeping Defender Workloads Manageable,” TheSpangenberg Group described the nature of the case-load problem around the country:

Today, in some jurisdictions, public defenderoffices are appointed [in] as many as 80 per-cent of all 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 of service suffers. At some point,

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B Y N O R M A N L E F S T E I N & G E O R G I A V A G E N A S

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 ofcases in a given period oftenbecome overwhelmed as well.Excessive workloads even affectcourt-appointed attorneys.Rules of professional responsi-bility make it clear that everylawyer must maintain a reason-able workload. 9

Like all opinions of the ABA EthicsCommittee, the new ethics opinion isbased substantially upon the ABA ModelRules of Professional 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 relief from exces-sive caseloads before judges and fromthose in charge of their offices. Theopinion carefully explains how the pro-visions of the Model Rules must be readtogether as an integrated whole, and theway in which they direct a course ofaction for lawyers with excessive case-loads and for lawyers with supervisoryresponsibilities.

The decision of the ABA EthicsCommittee to address the problem ofexcessive defender caseloads resultedfrom efforts by SCLAID and the NationalLegal Aid and Defender Association(“NLADA”) to persuade the ABA EthicsCommittee to prepare an opinion on thesubject. In addition to submitting writ-ten requests for such an opinion,10 duringthe August 2005 ABA Annual Meeting inChicago the ABA Ethics Committee metwith a SCLAID delegation and anNLADA representative to discuss theSCLAID/NLADA request.11

Initially the ABA Ethics Committeewas reluctant to issue an opinion on thesubject of excessive defender caseloads,asserting that the matter was adequatelycovered in prior ethics opinions relatedto civil legal aid lawyers.12 Ultimately,however, the committee agreed that theproblem warranted their attention anddiffered from burdensome caseloads oflegal aid lawyers, who normally are nei-ther court appointed nor under con-tracts sometimes requiring them to rep-resent large numbers of clients.

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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.

I am 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” landmarkdecisions. 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’sBroken 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 ofuniform quality.” The report and its conclusions were based upon public hearingsheld in 2004 throughout the country in recognition of Gideon’s 40th anniversary.

In recent years, 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 ofour 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 effective indigent defense 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.

— Norman Lefstein

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The ABA Ethics Committee’s Opinion

The opinion addresses the ethicalresponsibilities of both the individuallawyer who has an excessive caseload andthe supervisors of such lawyers.Although the word “public defender” isused in the opinion, a footnote explainsthat it “means both a lawyer employed ina public defender’s office and any otherlawyer who represents, pursuant to courtappointment or government contract,indigent persons charged with criminaloffenses.”13 The logic of the opinion,moreover, extends to juvenile delinquen-cy and other kinds of proceedings inwhich the defense attorney is faced withan excessive caseload. Finally, the opin-ion deals with the duty of heads ofdefender offices, boards that overseepublic defender and assigned counselprograms, if any, and private practicelawyers who serve as supervisors andmanagers of law firms.

The Lawyer Handling the Case As for the individual lawyer, the

opinion begins by noting that an attor-ney has a duty to be both competent anddiligent, and also to communicate withthe client concerning the representation.These obligations require an attorney to“keep abreast of changes in the law; ade-quately investigate, analyze, and preparecases; act promptly on behalf of clients;communicate effectively on behalf ofand with clients; control workload soeach matter can be handled competently;and, if a lawyer is not experienced withor knowledgeable about a specific area ofthe law, either associate with counsel whois knowledgeable in the area or educateherself about the area.” 14

But what is a defense lawyer to do ifthe current caseload assigned to thelawyer will prevent the rendering ofcompetent and diligent representation?And what is a defense lawyer to do if tak-ing additional cases will mean that com-petent and diligent representation can-not be provided?15 In response to thesequestions, the opinion is clear andunambiguous: “If a lawyer believes thather workload is such that she is unable tomeet the basic ethical obligationsrequired of her in the representation of aclient, she must not continue the repre-sentation of that client or, if representa-tion has not yet begun, she must declinethe representation.”16 The opinion sensi-bly recognizes that “[n]ational standardsas to [annual] numerical caseload lim-its”17 cannot be controlling. As the opin-ion explains, whether a lawyer’s caseloadis excessive “depends not only on the

number of cases, but also on such factorsas case complexity, the availability ofsupport services, the lawyer’s experienceand ability, and the lawyer’s nonrepre-sentational duties.” 18

After noting that “[a] lawyer’s pri-mary duty is owed to existing clients,”19

the opinion suggests the courses ofaction defenders should follow whenthat duty is threatened by an excessivecaseload. This can occur (1) when alawyer’s cases are assigned by the courtand (2) when cases are assigned to thelawyer by the public defender’s office orother source, such as a law firm. In thefirst situation, when a caseload hasbecome excessive or additional cases willrender the lawyer’s workload excessive,appropriate actions include asking thatthe court not assign new cases until thecaseload permits the rendering of com-petent representation.20 Alternatively, ifthe matter cannot be resolved throughsuch a request, “the lawyer should file amotion with the trial court requestingpermission to withdraw from a sufficientnumber of cases to allow the provision ofcompetent and diligent representation tothe remaining clients.”21

In following these steps, must adefender inform her clients of efforts towithdraw from representation? Theopinion answers this question in theaffirmative, stating in a footnote that a“client should be notified, even if courtrules do not require such notification.”22

In support of such action, Rule 1.4 iscited: “A lawyer shall keep the client rea-sonably informed about the status of thematter.”23 In other words, if a lawyer seeksto withdraw because she is convincedthat competent representation cannot beprovided, this is an exceedingly signifi-cant development in the client’s case, andthe client must be told.

What should the defender do if thecourt denies the request to withdrawfrom existing cases or refuses to refrainfrom assigning new cases to the defend-er? Once again, the opinion is clear. Thedefender “must take all feasible steps toassure that the client receives competentrepresentation”24 and this includes “anyavailable means of appealing”25 a trialcourt’s adverse ruling. Obviously, thereare no provisions in the Model Rules thatexpressly require that an appeal be takenfrom an adverse trial court decisionrefusing to grant relief to an attorneyclaiming an excessive caseload. But dili-gence in representing a client, as noted inComment 1 to Model Rule 1.3, requiresthat “[a] lawyer…take whatever lawfuland ethical measures are required to vin-dicate a client’s cause or endeavor. A

lawyer must also act with commitmentand dedication to the interests of theclient and with zeal in advocacy upon theclient’s behalf.”26 Thus, if an attorney isconvinced that she must have relief froman excessive caseload and the trial courtdenies such relief, the ABA EthicsCommittee concluded that an appeal, ifpossible, is essential in pursuit of theclient’s interest.

However, an interlocutory appealfrom a trial court’s denial of a defender’smotion for relief based upon an excessivecaseload appears not to be available any-where as a matter of right. Invariably,when an appellate court hears an appealin such a case, it is because the court hasdecided to do so in the exercise of its dis-cretion. For example, in Arizona appel-late review of a court’s denial of adefender’s motion to withdraw may bereviewed only by “special action.”27

Similarly, in New York interlocutoryappeals are not allowed as of right, andthe review of a denial of a motion towithdraw is likely available only througha “special proceeding.”28 And in Florida,where there have been several appellatedecisions dealing with trial court denialsof motions to withdraw, the courts haveexercised discretion in deciding whetherto hear the cases.29 In the event a defend-er’s motion to withdraw is granted, astate’s appellate court may hear the caseupon the petition of the county or state,which is what happened in an often-citedLouisiana case.30 It remains to be seenwhether the opinion of the ABA’s EthicsCommittee will lead to litigation inwhich state appellate courts are more fre-quently called upon to resolve claims ofexcessive defender caseloads.

If a defender is unsuccessful inwithdrawing from current cases or instemming the flow of new cases and anappeal is either unavailable or unsuccess-ful, the opinion states that the court’sorder must be obeyed while the defendertakes “all steps reasonably feasible toinsure that her client receives competentand diligent representation.”31 The dutyof counsel to continue to provide repre-sentation despite believing that compe-tent legal services cannot be provided isconsistent with Model Rule 1.16 (c):“When ordered to do so by a tribunal, alawyer shall continue representationnotwithstanding good cause for termi-nating the representation.”32 The ModelRules do not condone civil disobedienceas a means of protesting a court’s deci-sion to provide legal services, and alawyer who resists a court’s final order toprovide representation risks being heldin contempt.

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In the second situation, where alawyer’s excessive caseload is distributedby the public defender office or othersource (e.g., a law firm under contract),the ethics opinion suggests a course that isnecessarily different from when the courtassigns the caseload. In this situation, thelawyer, with permission of his or hersupervisor, must seek a solution by trans-ferring cases to another lawyer in theoffice whose workload is not excessive or“transferring non-representationalresponsibilities within the office.”33 Theopinion states that if a defender’s supervi-sor “makes a conscientious effort to dealwith workload issues” there is a presump-tion that “the supervisor’s resolution ordi-narily will constitute a ‘reasonable resolu-tion of an arguable question of profes-sional duty’….”34 This derives both fromthe language of Model Rule 5.235 andComment 2 explaining the rule, whichstates that a supervisor’s judgment shouldcontrol when a dispute between a lawyerand supervisor is “reasonably arguable.” 36

The critical question of who deter-mines whether a supervisor’s resolutionof a professional dispute is “reasonablyarguable” is not addressed in the ModelRules. And, of course, there is no easyway that the rules could resolve this issuesince it will always be a matter of profes-sional judgment. Inevitably, when dis-

agreements arise, the supervisor willclaim that her resolution is “reasonable”and the subordinate lawyer will insistthat it is not.

If the supervisor’s decision in thematter is not reasonable, however, theopinion states that “the public defendermust take further action.”37 “[T]he lawyershould continue to advance up the chainof command within the office until eitherrelief is obtained or the lawyer hasreached and requested assistance or relieffrom the head of the public defender’soffice.”38 And, if relief is still not obtained,the opinion indicates that there are stilltwo additional steps that the attorneymay pursue: (1) take the issue to the gov-erning board of the agency, if any; and,(2) if still no relief is obtained, the lawyermay file a motion seeking to “withdrawfrom a sufficient number of cases to allowthe provision of competent and diligentrepresentation to the remaining clients.” 39

The basis for a lawyer taking herconcern about an excessive caseload tothe agency’s governing board is notexplained in the ABA Ethics Committeeopinion, although in a footnote the opin-ion references Model Rule 1.13.40

Apparently, the ABA Ethics Committeebelieves that the language of Section 1.13(b) is sufficiently broad to cover the situ-ation in which a defender informs an

agency’s board that the chief of the officerefuses to provide relief in the face of thelawyer’s excessive caseload. Subsection(b) authorizes a lawyer to go “to thehighest authority that can act on behalfof the organization” when “an officer,employee or other person associatedwith the organization is engaged inaction…or refuses to act in a matterrelated to the representation that is a vio-lation of a legal obligation to the organi-zation….”41 Thus, if the head of anagency fails to provide relief to a lawyerwho has an excessive caseload, arguablythe agency’s leader is failing in her “legalobligation to the organization” to assurethat the agency’s lawyers provide compe-tent client services.

Aside from the Model Rules, itmakes perfectly good sense for a dissatis-fied defender to seek relief from theagency’s board of directors or trustees.The purpose of such boards is to set pol-icy for the organization, and surely thereare few policies more important thandetermining the size of attorney case-loads. While boards of defender organi-zations are admonished not to interferein the details of how lawyers representtheir clients, 42 a board’s decision toreview the overall workload of an attor-ney to determine whether it is manage-able should not be regarded as a viola-

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tion of this rule.Of course, it will not be everyday

that a lawyer, in disagreement with thosein authority in her own organization,files a motion with the court seeking towithdraw and/or to curtail the assign-ment of additional cases. For this tooccur, at a minimum the lawyer wouldhave had to be unsuccessful in appealingto her supervisor, appealing to the headof the agency, and to the agency’s govern-ing board, assuming that such a bodyexisted. However, the opinion of the ABAEthics Committee, predicated on theproposition that each lawyer under theModel Rules is ultimately responsible forhis or her own personal representation, iscorrect. The duty to provide “competentrepresentation” is owed by every lawyerto each client, and under the Model Rulesa lawyer cannot avoid this requirementwhen those in charge of the defenderprogram are unwilling to provide reliefor to challenge the system.

Duty of the SupervisorThe foregoing discussion makes

clear that the supervisor’s judgmentrespecting a defender’s excessive caseloadis controlling if the disagreement is “rea-sonably arguable,” although not other-wise. But there is more to be said aboutthe duty of the supervisor. As the opinionpoints out, consistent with Model Rule5.1, “lawyers having direct supervisoryauthority [must] take reasonable steps toensure that lawyers in the office theysupervise are acting diligently in regardto all legal matters entrusted to them,communicating appropriately with theclients on whose cases they are working,and providing competent representationto their clients.” 43

If a supervisor determines that adefender’s workload is excessive, “thesupervisor should take whatever addi-tional steps are necessary to ensure thatthe subordinate lawyer is able to meet herethical obligations in regard to the repre-sentation of her clients.”44 Among theoptions set forth in the opinion are thefollowing: (1) transferring non-represen-tational duties to other lawyers in theoffice; (2) transferring cases to otherlawyers in the office who can handle thecases competently; (3) providing addi-tional resources to the overburdenedlawyer so that she is able to provide com-petent service; and (4) supporting thesubordinate lawyer’s effort to withdrawfrom client representation.

Beyond the ABA Ethics Opinion There are a number of issues worthy

of consideration in the wake of the ABA

Ethics Committee opinion. We addressin this section the following questions:

• Did the ABA Ethics Committee err inconcluding that an individual defendershould be able to challenge the judg-ment of her supervisor or chief defend-er?

• To what extent is the ABA EthicsCommittee opinion consistent withethics opinions of states and otherorganizations, as well as national stan-dards related to indigent defense?

• What should be the content of adefender’s motion seeking relief froman excessive caseload and how shouldthe issue be presented to the court?

• Do chief defenders, supervisors, andboard members incur potential civil lia-bility if they fail to support a defender’sreasonable claim of excessive caseload?45

Challenging the Supervisor/Chief Defender

At first blush, it may seem unneces-sary to discuss whether the ABA EthicsCommittee made a mistake in decidingthat a defender, if unreasonably deniedrelief from an excessive caseload, isauthorized to challenge a supervisor orhead of a defender program by filing amotion with the trial court seeking towithdraw from pending cases and/or toavoid additional assignments. Are notthe Model Rules clear about this issue?

In fact, as noted above, the rules donot leave any real doubt about the mat-ter. Model Rule 5.2 recognizes that “[a]subordinate lawyer does not violate theRules of Professional Conduct if thatlawyer acts in accordance with a supervi-sory lawyer’s reasonable resolution of anarguable question of professional duty.”46

The unmistakable implication of thislanguage is that a lawyer violates profes-sional conduct rules if she follows asupervisor’s instruction that is not a “rea-sonable resolution” of the matter. Thisapproach, moreover, is consistent withModel Rule 1.1, which requires thatevery lawyer always provide “competent”representation. 47

While the ABA Ethics Committeewas preparing its opinion severalCalifornia public defenders sent letters tothe committee and to other ABA offi-cials, arguing that individual defendersmust be absolutely bound by the deci-sion of the head defender respectingwhether a defender’s caseload was exces-sive. Many chief defenders were aware inadvance that the ABA Ethics Committee

was preparing an opinion about exces-sive defender caseloads because the mat-ter was mentioned during a program atthe annual meeting of the NLADA inOrlando, Fla., in November 2005.Moreover, public defenders were toldthat the committee was being asked tocomment on the ethical duties of boththe head of the defender office and theassistant or deputy defender. And it waspredicted that the committee wouldalmost certainly declare that such adefender must be allowed to challengeher supervisor’s judgment about whetherthe lawyer’s caseload was excessive.48

Soon after this program, the head ofthe Los Angeles County Public DefenderOffice, which is the largest such programin the country, complained in a letter tothe Chair of SCLAID and to the ABAEthics Committee of “disastrous” conse-quences if the requested ethics opinionwere to be issued:

It could easily make PublicDefender offices unmanage-able. It, inter alia, could substi-tute the judgment of a rookielawyer, lacking experience andperspective for the discretionexercised by my attorney man-agers and me. Attorney man-agers in my office are all formertrial lawyers who possess at least15 years experience. Many like Ihave more than 30 years of suchexperience.

It would set in motion an adver-sarial relationship between meand my lawyers such that resortto punitive measures such asdiscipline would likely occur. . . .The proposed rule (sic: ethicsopinion) would be the source ofmuch grief and mischief. 49

The Los Angeles County publicdefender also sent a letter to MichaelGreco, then President of the AmericanBar Association, expressing similarconcerns and warning that the pro-posed ethics opinion “would beexploited by under performing lawyers,who instead of complying with reme-dial efforts…would demand caseloadrelief and claim retaliation if any per-sonnel action is taken by managers orthe Chief Defender.”50 Chief defendersfrom several other California countiesalso wrote letters expressing concernssimilar to those of the Los AngelesCounty Public Defender.

None of the letters from theCalifornia public defenders mention the

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Model Rules or acknowledge that ModelRule 5.2 anticipates that a supervisor’sreasonable judgment should be bindingupon a subordinate lawyer. While it isunderstandable that a chief publicdefender might prefer that her authoritynever be challenged, the evidence ofexcessive defender caseloads throughoutthe country51 strongly suggests, just as amatter of policy if nothing else, thatdefenders should be permitted to chal-lenge the leadership of their organiza-tions. But, in addition, under rules ofprofessional conduct, assistant or deputydefenders everywhere jeopardize theirlaw licenses when less than “competent”representation is provided.

At the time the California publicdefenders wrote their letters, the state ofCalifornia had not yet adopted a coun-terpart to Model Rule 5.2 dealing withthe duty of subordinate lawyers. Thisprovision also makes clear that a lawyer isbound by the “Rules of ProfessionalConduct notwithstanding that the lawyeracted at the direction of another person.”However, the California State Bar hasnow proposed a provision almost identi-cal to ABA Model Rule 5.2 and publiccomment has been invited.52 In response,the Los Angeles County Public Defenderhas strongly urged the State Bar ofCalifornia not to adopt a Californiacounterpart to Model Rule 5.2 because itcould lead to the ABA Ethics Committeeopinion being held applicable toCalifornia public defenders. 53

Just like ABA Model Rule 5.2, theproposed California rule declares that alawyer does not have an excuse for failingto provide competent representation sim-ply because she is acting under instruc-tions of a supervisor. In fact, proposedComment 1 to California’s proposed Rule5.2 contains the following sentence, whichis not included within Comment 1 toABA Model Rule 5.2: “A lawyer under thesupervisory authority of another lawyer isnot by the fact of supervision excusedfrom the lawyer’s obligation to complywith the Rules of Professional Conduct orthe State Bar Act.” 54

Almost a decade before the ABAEthics Committee issued its recent opin-ion on excessive defender caseloads, theCalifornia Standing Committee on Pro-fessional Responsibility and Conduct(“California Ethics Committee”) pre-pared an ethics opinion on the same sub-ject. Although the California EthicsCommittee opinion, Formal OpinionInterim No. 97-0007, is still available onthe Web site of the California State Bar,55

following a period of public comment,the opinion was never formally issued by

the California Ethics Committee.56 TheCalifornia ethics opinion is of interestnevertheless because in answering thequestion of an attorney’s duty whenfaced with too many cases, the CaliforniaEthics Committee dealt with the roles ofboth a deputy public defender and chiefdefender, offering opinions substantiallysimilar to those contained in the ABA’snew ethics opinion. Moreover, the Cali-fornia opinion invoked ABA Model Rule5.2 as instructive for California lawyers:

But if Attorney X, the defenderheading the office, disagrees, webelieve that attorney Y, as adeputy defender [who com-plains about an excessive case-load and an inability to providecompetent representation],may satisfy his ethical duties tohis indigent criminal defendantclients by following AttorneyX’s decision, unless that decisionconstitutes an unreasonable reso-lution of a question of ethical du-ty. (Emphasis added).In the absence of California au-thority on point, we look forguidance to Rule 5.2 of theAmerican Bar Association(ABA) Model Rules of Profes-

sional Conduct…. AlthoughModel Rule 5.2 is not bindingon California attorneys, we be-lieve that the guidance it pro-vides does not conflict with Cal-ifornia authority and is bothhelpful and appropriate for Cal-ifornia attorneys in the presentsituation.

* * * *But if Attorney Y believes thathe may not rely on the decisionof Attorney X respecting hisability to provide competentrepresentation because thatdecision constitutes an unrea-sonable resolution of a questionof ethical duty, Attorney Y . . .must proceed to invoke, andexhaust, all the remedies avail-able to him in the office.Ultimately, however, in circum-stances that we believe are likelyto occur only rarely, Attorney Ymay have no alternative otherthan to decline to proceed. 57

Ethics Opinions and StandardsThere are several approved ethics

opinions of state bars (unlike the unap-proved California ethics opinion) deal-ing with defender caseloads, and these

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1st CircuitMartin G. WeinbergBoston, MA(617) 227-3700owlmcb@worldnet.att.net

2nd CircuitWilliam I. AronwaldWhite Plains, NY(914) 946-6565waronwald@aol.com

3rd CircuitAlan L. ZegasChatham, NJ(973) 701-7080alanatlaw@aol.com

4th CircuitJohn K. ZwerlingAlexandria, VA(703) 684-8000jz@zwerling.com

5th CircuitFrank JacksonDallas, TX(214) 871-1122fjack222@yahoo.com

Kent A. SchafferHouston, TX(713) 228-8500zackymax@aol.com

6th CircuitDonald A. BoschKnoxville, TN(865) 637-2142dbosch@boschlawfirm.com

James A. H. BellKnoxville, TN(865) 637-2900jbell@jamesahbell.com

7th CircuitRichard KammenIndianapolis, IN(317) 236-0400rkamm@iquest.net

8th CircuitBruce H. HanleyMinneapolis, MN(612) 340-8921

Ronald I. MeshbesherMinneapolis, MN(800) 274-1616rmeshbesher@meshbesh-er.com

Burton H. ShostakSt. Louis, MO(314) 725-3200bshostak@msmattor-neys.com

9th CircuitRichard A. CremerRoseburg, OR(541) 672-1955rcremer@rosenet.net

Alfred Donau, IIITucson, AZ(520) 795-8710skipdonau@aol.com

David A. EldenLos Angeles, CA(310) 478-3100elden@innocent.com

10th CircuitCharles W. DanielsAlbuquerque, NM(505) 842-9960cwd@fbdlaw.com

Michael L. StoutLas Cruces, NM(505) 524-1471mlstout@nm.net

11th CircuitStephen R. GlassrothMontgomery, AL(334) 263-9900srg@glassrothlaw.com

Howard M. SrebnickMiami, FL(305) 371-6421srebnick@royblack.com

Susan W. Van DusenMiami, FL(305) 854-6449svandusenlaw@aol.com

DC CircuitHenry W. AsbillWashington, DC(202) 912-4800hasbill@cozen.com

CIRCUIT COORDINATORSFor immediate assistance call the Lawyers’ Strike Force Circuit Coordinator nearest you.

STRIKE FORCE CO-CHAIRSHoward M. SrebnickMiami, FL(305) 371-6421srebnick@royblack.com

Susan W. Van DusenMiami, FL(305) 854-6449svandusenlaw@aol.com

Martin G. WeinbergBoston, MA(617) 227-3700owlmcb@worldnet.att.net

NACDL STRIKE FORCEYOU NEVER STAND ALONE

NACDL’s Strike Force willreview your case at no costwhen you have been:

■ Subpoenaed forproperly representing a client

■ Threatened with contempt

■ Hit with an impropermotion to disqualifyyou from a case

are substantially similar to the approachof the new ABA ethics opinion. But noneof the state bar ethics opinions are ascomprehensive as the ABA’s opinion andnone of the other opinions were ren-dered by an ethics body of comparableprestige that speaks on behalf of thelargest group of lawyers in America.

These prior state bar ethics opinionsare cited in the ABA’s ethics opinion. Andin each of the opinions, the state bar’sethics committee concluded that a publicdefender is not justified in violating rulesof ethics due to an excessive caseload. Ina 2004 opinion, for example, the EthicsAdvisory Committee of the SouthCarolina Bar recommended that an over-burdened public defender should “firstraise the matter with [the] attorney’ssupervising lawyer or the chief publicdefender.”58 In the event relief is notobtained, the committee recommendedthat a defender present the matter to theagency’s board of directors, if any, and ifthat fails, the defender “should refuse toaccept additional appointments until theattorney’s caseload is reduced to the levelthat the attorney can ethically handle.”59

As for the cases of pending clients thatthe defender cannot competently repre-sent, the attorney must seek the court’spermission to withdraw. Significantly,the opinion recites that the attorneyseeking the ethics opinion is “employedby a Public Defender’s Office…[and] hasa caseload of 1,000 felonies.” 60

In 1990, the Ethics Committee of theArizona State Bar issued an opinion con-taining conclusions virtually identical tothose of the ABA Ethics Committee andthe Ethics Advisory Committee of theSouth Carolina Bar. In addition, theArizona opinion is noteworthy for itsdiscussion of the deference due to a“lawyer’s determination that his or hercaseload is excessive and violative of hisor her duties of competence and dili-gence….”61 In the opinion of the Arizonacommittee, this judgment should begiven “great weight.”62 The committeethen elaborated on its rejection of anyformula for deciding on the number ofcases that a defender can handle:

Although the law in some con-texts may treat Assistant PublicDefenders as interchangeablegoods, the duties of competenceand diligence are peculiarlyindividual duties. Individualskills are not interchangeable;and what one lawyer may com-fortably handle may severelyovertax another.

•* * * *

Just as this committee rejectsany mathematically set numberof cases a lawyer may handle asan ethical norm, we do notbelieve that the Rules ofProfessional Conduct allow asupervisory lawyer to arbitrarilyrequire each lawyer in an officeto handle a certain number ofcases. Aside from differences inindividual skill, differences inthe complexity of cases, difficul-ties in communication withclients, variances in factualinvestigation and legal researchrender it virtually impossible todetermine some ideal basket of160 cases that an ‘average’ lawyershould handle in a year.”63

Still another opinion especiallynoteworthy is Ethics Opinion 03-01issued by the American Council of ChiefDefenders (“ACCD”), which is part ofthe NLADA. Since the ACCD is com-prised of chief public defenders fromacross the country, its ethics opinionunderstandably addresses the excessiveworkload issue from the standpoint of adefender agency head. The opinion,however, is consistent with the ABA’s newethics opinion and the opinions of statebar ethics committees. Thus, the opinionconcludes that “[w]hen confronted witha prospective overloading of cases orreductions in funding or staffing whichwill cause the agency’s attorneys toexceed…capacity [to provide competent,quality representation in every case], thechief executive of a public defense agencyis ethically required to refuse appoint-ment to any and all such excess cases.”64

The opinion also recognizes that an indi-vidual defender breaches his or her dutyto provide competent representation ifan excessive caseload is accepted, citingthe ethics opinions from Arizona men-tioned earlier and opinions fromWisconsin. 65

The ABA’s Ethics Opinion citesfavorably Principle 5 of the ABA TenPrinciples of a Public Defense DeliverySystem (“ABA Ten Principles”). Thisprinciple provides that “[d]efense coun-sel’s workload is controlled to permit therendering of quality representation.”66

The opinion, however, does not makeany mention of the ABA criminal justicestandards on which Principle 5 and theother principles of the ABA TenPrinciples are based. As the introductionto the ABA Ten Principles explains,“[t]he more extensive policy statementdealing with indigent defense services iscontained within the ABA Standards for

Criminal Justice, Providing DefenseServices (3d ed. 1992)….”67

In fact, beginning in 1979, the sec-ond edition of Providing DefenseServices has contained a provision on“workload” that is substantially similar inits approach to the ABA’s new ethicsopinion.68 Today, much like the secondedition, the third edition of the standardspublished in 1992 admonishes defenseorganizations and individual lawyers totake such steps as may be necessary toavoid either “pending or projected case-loads” that interfere with rendering“quality representation or lead to thebreach of professional obligations.”69 TheABA’s Defense Function standards con-tain a comparable provision, so that inboth of the ABA’s chapters dealing withdefense representation, lawyers are told tobe mindful of the size of their workloads,its impact on the quality of their repre-sentation, and the risk that it “may lead toa breach of professional obligations.”70

Standard 5-5.3 of Providing DefenseServices also provides that judges shouldnot require either individual lawyers ordefense programs to accept so manycases that the quality of representation isjeopardized or professional obligationsviolated.71 While it is obviously impor-tant that judges not force defense lawyersto accept more cases than they can repre-sent and to consider carefully an attor-ney’s plea of case overload, the new ABAethics opinion does not address theresponsibility of judges in dealing withdefense requests for relief from excessivecaseloads. The reason for this is probablybecause the ABA Code of JudicialConduct on which the committee wouldhave had to base its opinion lacks provi-sions that clearly apply to a judge’s dutyto grant defenders relief from excessiveworkloads. In some states, there areworkload standards applicable todefenders similar to Standard 5-5.3,72 butthere are relatively few court procedurerules that impose on judges a duty tomonitor defender workloads and to pro-vide relief if excessive workloads are like-ly to prevent effective representation. 73

Motions to Withdraw Since the Model Rules do not deal

with the content of motions to withdrawwhen lawyers have too many cases, it isnot surprising that the ABA’s new ethicsopinion does not either. For defenders,however, the content of such motions isextremely important since a successfulwithdrawal motion may be the only wayin which a defender or head of an agencycan obtain relief from excessive case-loads.

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What should be in a motion to with-draw based upon too many cases? Unlessa defender knows in advance that thejudge will grant the motion based simplyon a request for relief, arguably themotion should be detailed, supported byappropriate affidavits, and contain arequest for a hearing. Ideally, the affi-davits should include opinions from oneor more experts in defense representa-tion who can attest to the defender’sexcessive caseload and is prepared to tes-tify in person at a later hearing.

While the motion should undoubt-edly express concerns for the SixthAmendment and effective assistance ofcounsel, defenders should rely heavily onthe state’s rules of professional conduct,the ABA’s new ethics opinion on exces-sive caseloads, ABA standards related toworkload, and other relevant authoritiesspecific to the jurisdiction. Conceivably,a judge who is reluctant to find that adefender’s representation is likely to beineffective prior to a case actually beingheard may be more receptive to concernsfor defenders violating their ethicalduties, especially since by denying amotion to withdraw, or by refusing tocurtail the assignment of new cases, thejudge may be deemed complicit in forc-ing a defender to behave unethically.

Specifically, we suggest that themotion to withdraw include objectivedata such as the number of pendingcases, the rate at which new cases are typ-ically received, the extent of supportservices, and similar kinds of informa-tion. In addition, either for all or a repre-sentative sample of the defender’s cases,the motion should describe the range oftasks that need to be undertaken inpreparation for either a negotiated settle-ment or trial, including investigations,research, motions, etc. Further, eitherwithin the motion to withdraw or whenthe motion is heard in court, a defendermay wish to inform the court that ifforced to continue with her current case-load (or to accept additional cases), inef-fective assistance of counsel will be ren-dered and that she will willingly testifyabout her deficient representation in apost-conviction proceeding.

These recommendations may seemlike nothing more than common sense,but they also reflect lessons derived fromcases involving excessive caseloads. Asmight be expected, when appellate andtrial courts have granted relief fromexcessive caseloads, the courts invariablyhave had before them detailed factualfindings. For example, when theLouisiana Supreme Court ruled there wasa presumption that defendants were not

likely receiving the effective assistance ofcounsel due to defender caseloads, thecourt had before it detailed factual find-ings developed in a series of hearings inthe trial court.74 Similarly, when a federaljudge held in a class action lawsuit thatthe caseloads of the Illinois Office of StateAppellate Defender were causing inordi-nate delays in adjudicating appeals andviolating due process, the judge conduct-ed a lengthy hearing in order to deter-mine the facts and heard from expert wit-nesses, among others.75

In a Florida case in which the publicdefender sought to withdraw from 29appeals, the Florida Supreme Courtexplained the difficulty of the courts indeciding such matters, while illustratingthe importance of the record developedin the trial court:

We acknowledge the publicdefender’s argument that thecourts should not involvethemselves in the managementof public defender offices. Atthe same time, we do notbelieve that courts are obligatedto permit the withdrawal auto-matically upon the filing of acertificate by the public defend-er reflecting a backlog in the

prosecution of appeals. In thisinstance, however, we concludethat the Public Defender of theTenth Circuit has presented suf-ficient grounds to be permittedto withdraw from representa-tion of appeals. 76

There are at least two other reasonswhy motions to withdraw based onexcessive caseloads should be as detailedas possible. As noted earlier, state rules ofcriminal procedure do not normallygrant defenders the right to appeal thedenial of motions to withdraw.77 Thus,appellate courts that exercise discretionto hear appeals from denials of suchmotions are not apt to do so unless a fulland compelling factual record is devel-oped in the trial court. In addition, asone court has pointed out, “[i]f a publicdefender can make the requisite showingto be relieved of new cases, a record isestablished by which the legislature canaccurately assess the manpower needs ofthe public defender system and thefinancial burdens…. Appropriate leg-islative responses can then be devel-oped.” 78

Civil Liability In light of the ABA’s ethics opinion,

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it is worth considering the possible civilliability of chief defenders, supervisorsand board members who fail to supporta defender’s reasonable claim of excessivecaseload.79 While there are not manycourt decisions in this legal area, there issufficient precedent to suggest that thesepersons are subject to liability if they failto support a defender’s efforts to with-draw, or otherwise fail to act, and theirconduct leads to a violation of a client’sconstitutional rights. If the decision ofthe chief defender, supervisor or board isfound to constitute “official policy” andamounts to “deliberate indifference,” lia-bility under 42 U.S.C. § 1983 is possible.80

Chief Defender/Head of Office.In Miranda v. Clark County,81 the NinthCircuit Court of Appeals held that thehead of a public defender office is subjectto civil liability under § 1983 for policiesthat lead to a denial of an individual’sright to effective representation. After thedefendant’s conviction was overturnedon a claim of ineffective assistance ofcounsel, the defendant brought a § 1983action against the head of the countypublic defender’s office, as well as thecounty and assistant public defenderwho represented him, alleging a violationof his constitutional rights arising fromthe office’s policies.82 The office allegedlyallocated minimal funding to defendantswho failed polygraph tests and alsoassigned the least-experienced defendersto capital murder cases without provid-ing training.83

The court held that the chiefdefender was subject to suit under § 1983because in allocating funds based onpolygraph test results, he was performingan administrative function that consti-tuted state action.84 The court explainedthat the office was adhering to “a policyof deliberate indifference to the require-ment that every criminal defendantreceive adequate representation, regard-less of innocence or guilt.”85 Likewise, inconsidering the county’s liability forassigning inexperienced and untrainedattorneys to capital offenses, the courtheld that the allegations were sufficientto create a claim that the county wasdeliberately indifferent to the constitu-tional rights of those clients accused ofcapital offenses.86

Supervisor Liability. Generally, thesame standards of fault and causationthat apply to the head of a public defend-er office or to other municipal entitiesgovern a supervisor’s liability.87

Specifically, three elements must be metto establish a supervisor’s liability under§ 1983: (1) the supervisor had actual orconstructive knowledge that her subordi-

nate was engaged in conduct that posed“a pervasive and unreasonable risk” ofconstitutional injury; (2) the supervisor’sresponse to that knowledge was so inad-equate as to show “deliberate indifferenceto or tacit authorization of the allegedoffensive practices;” and (3) that therewas an “affirmative causal link” betweenthe supervisor’s inaction and the partic-ular constitutional injury suffered by theplaintiff.88

Board Liability. There are no deci-sions specifically addressing whethermembers of an indigent defense boardcan be held liable if they elect to supportthe supervisor’s and/or chief defender’sunreasonable decision not to decrease anassistant’s caseload, or for that matter, ifthey elect to take no action at all.However, cases regarding the liability oflocal municipal governing boards pro-vide important guidance on this issue. 89

In Monell v. Department of SocialServices,90 a leading Supreme Court deci-sion on municipal liability, the Courtheld that a local governing body cannotbe held liable based simply on a theory ofrespondeat superior. Instead, liabilityarises only when there is a direct causallink between an official “policy” and thealleged constitutional deprivation.91 InMonell, female employees brought anaction against, inter alia, the Board ofEducation challenging its policy requir-ing pregnant employees to take unpaidleaves of absence before medical reasonsrequired a leave of absence.92 The Courtheld that a board may be sued directlyunder 42 U.S.C. § 1983 “where the actionthat is alleged to be unconstitutionalimplements or executes a policy state-ment . . . or decision officially adoptedand promulgated by that body’s offi-cers.”93 Further, the Monell Court foundthat the board’s action was an “officialpolicy” for which the Board could beheld liable under § 1983 for constitution-al violations.94 Other jurisdictions haveheld that even a single decision by amunicipality’s properly constituted leg-islative body can lead to § 1983 liability,as a single decision may constitute offi-cial policy.95

The heightened “deliberate indiffer-ence” standard that governs heads ofoffices and supervisors applies to boardsas well. While City of Canton v. Harris96

applied the standard to a city, there arecases applying the “deliberate indiffer-ence” standard to local governing boards,such as school district boards, which arearguably analogous to indigent defenseboards.

In Gonzalez v. Ysleta IndependentSchool Dist.,97 for example, a student and

her parents brought an action against aschool district’s board of trustees under §1983, claiming that plaintiff was sexuallymolested (her constitutional right tobodily security violated) due to theboard’s decision to transfer to plaintiff ’sschool a teacher who two years earlierwas accused of sexual indiscretions atanother school. In a two-step analysis,the court first determined that, underMonell, the board’s decision to transferthe teacher constituted an official policyupon which liability could attach.98 In thesecond stage, however, the court foundthat the board was not ultimately liablebecause in making that decision, it didnot act with deliberate indifference.99 Inother words, the board did not “ignore orturn a blind eye” to the previous com-plaint about the teacher when the com-plaint surfaced, but rather, the boardrequested an investigation and recom-mended a course of action.100 The courtthus determined that the board’s precau-tions reflected concern, not indifferenceor apathy.101

Accordingly, if members of adefender board take no action in the faceof excessive caseloads, the board mayactually be inviting liability since it maybe seen as “turn[ing] a blind eye.”102 InJustice O’Conner’s concurrence in City ofCanton, she stated, “[w]here a § 1983plaintiff can establish that the facts avail-able to city policymakers put them onactual or constructive notice that theparticular omission is substantially cer-tain to result in the violation of the con-stitutional rights of their citizens, the dic-tates of Monell are satisfied.”103 Arguably,if an indigent defense board fails to act bydeciding not to review or investigate thedenial of a staff attorney’s request towithdraw, the board is acting with delib-erate indifference. For a board to incurliability, however, there must be “a highdegree of fault on the part of city officialsbefore an omission that is not in itselfunconstitutional can support liability asa municipal policy under Monell.”104

A Call to ActionThe ABA ethics opinion should be

understood as a call to action by bothindividual defenders burdened withexcessive caseloads, as well as by supervi-sors and heads of defender programs.The sad truth is that it seems not to be.The opinion was issued in mid-July 2006(although dated May 13, 2006), and weare writing this “conclusion” at the startof October. During the past two-and-a-half months, however, the opinion seemsto have created barely a ripple amongdefenders throughout the country.105

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One of the few news articles dealingdirectly with the ethics opinion appearedin the Chicago Sun-Times on July 24,2006. The legal affairs reporter for thenewspaper interviewed several CookCounty assistant public defenders inChicago. One of those interviewed“working in a misdemeanor courtroomlaughed and said, ‘[w]e have 400 [cases] amonth! To be perfectly honest, we’re notat liberty to reject any cases.’”106 Anotherpublic defender handling felony casesadmitted she was “handling 140 cases ata time.”107 She further acknowledged thatshe closed “‘a minimum of 20 a month.What’s that – 240 a year? They couldmake this work better by giving us moremoney to hire more people. Courtroomsthat should have three people have twoor sometimes one. We’ve probably had10 people leave . . . since the end of lastyear and not be replaced.’”108

By their own admissions, theselawyers have excessive caseloads and nomatter how dedicated and conscientiousthey are, they cannot furnish the kind ofcompetent and diligent representationrequired by the Illinois Rules ofProfessional Conduct109 and that a clientpaying for legal services can expect toreceive. Yet, as the Chicago Sun-Timesarticle so vividly demonstrates, substan-dard defense representation that fails tocomply with the rules of professionalconduct is so common among defendersthat it can be publicly admitted withoutworrying that judges, disciplinary coun-sel or anyone else will pay any real atten-tion. In Chicago and elsewhere in publicdefense, just as in the legal profession asa whole, defenders have all too oftencome to accept burdensome caseloads asnormal, apparently believing that repre-sentation in compliance with profession-al responsibility rules and theConstitution is somehow either inappli-cable, unattainable, or both.

We believe, however, that defendersand their offices are not as powerless asthey may think they are. And the ABA’snew ethics opinion tells them that theyhave a clear duty to take action both toprotect fully the legal rights of theirclients and themselves from furnishingincompetent representation. But it takescourage to stand up to authority – boththe authority of judges and sometimesthe heads of defender programs. It alsotakes courage from the heads of defenderprograms and their boards of directors.

Nationwide, we really do not knowhow many defender offices are adamantin forcing their lawyers to furnish incom-petent representation in violation of pro-fessional conduct rules because defend-

ers rarely challenge the leadership oftheir office. Similarly, we do not knowhow many trial judges are willing to forcedefender offices and individual defendersto proceed with incompetent representa-tion when the case for relief is fully doc-umented. Nor do we know if judgeswould really force defense lawyers to pro-ceed if the lawyers were to put on therecord that they will furnish deficientrepresentation in violation of both pro-fessional conduct rules and the SixthAmendment. Isn't it, finally, about timethat we found out?

Notes 1. See ABA MODEL RULES OF PROF’L

CONDUCT R. 1.1 (2006):“A lawyer shall providecompetent representation to a client.Competent representation requires thelegal knowledge, skill, thoroughness andpreparation reasonably necessary for therepresentation.” Model Rule 1.3 provides: “Alawyer shall act with reasonable diligenceand promptness in representing a client.”Although not mentioned in Formal Opinion06-441, provisions of the ABA Model Rulesrelated to conflicts of interest also are impli-cated when a defender has an excessivenumber of cases. Model Rule 1.7(a)(2) pro-hibits representation of multiple clients (i.e.,a “concurrent conflict of interest”) when“there is a significant risk that the represen-tation of one or more clients will be materi-ally limited by the lawyer’s responsibilities toanother client. . . .” As stated by the SupremeCourt of Florida, “[w]hen an attorney repre-senting indigent defendants is required tomake choices between the rights of the var-ious defendants [being represented], a con-flict of interest is inevitably created.” In ReOrder on Prosecution of Criminal Appeals bythe Tenth Judicial Circuit Public Defender, 561So.2d 1130, 1132 (Fla. 1990).

2. ABA Committee on Ethics and Prof’lResponsibility, Formal Op. 06-441 (May 13,2006) (“Formal Op. 06-441”).

3. See, e.g., Gideon v.Wainwright, 372 U.S.335, 341-45 (1963) (Sixth and FourteenthAmendments to the Constitution guaranteethe provision of counsel to indigent personsaccused of crimes in state felony proceed-ings); Argersinger v. Hamlin, 407 U.S. 25, 37(1972) (right to counsel applies to state mis-demeanor proceedings in which actualimprisonment is imposed); In re Gault, 387U.S. 1, 41 (1967) (right to counsel extendedto state juvenile delinquency proceedings);Alabama v. Shelton, 535 U.S. 654, 662, 674(2002) (right to counsel applies to state mis-demeanor proceedings in which suspendedjail sentence imposed); Douglas v. California,372 U.S.353,355-357 (1963) (right to counselapplies to first criminal appeal to an appel-late court).

4. Gideon’s Broken Promise: American’sContinuing Quest For Equal Justice, AmericanBar Association’s Standing Committee onLegal Aid and Indigent Defendants 38 (ABA2004), available at http://www.abanet.org/legalservices/sclaid/defender/broken-promise/fullreport. pdf (last visited Sept. 28,2006).

5. Id. at 38.6. Id. at 39.7. Gideon Undone: The Crisis in Indigent

Defense Funding,ABA SCLAID, in cooperationwith the ABA’s Criminal Justice and GeneralPractice Sections and NLADA 3 (ABA 1982),available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/gideonundone.pdf (lastvisited Sept. 28, 2006).

8. Keeping Defender WorkloadsManageable, Indigent Defense Series #4,Bureau of Justice Assistance Monograph,prepared by The Spangenberg Group(2001), available at http://www.ncjrs.gov/pdffiles1/bja/185632.pdf#search=%22k eeping%20defender%20wor k-loads%20manageable%22 (last visited Sept.28, 2006).

9. Id. at 2.10. Letter from Ross Shepard, Defender

Director, NLADA (2004-05), to ABA StandingCommittee on Ethics and Prof’lResponsibility (“ABA Ethics Committee”), toGeorge Kuhlman, Ethics Counsel, and Chair,Marvin Karp (Jan. 7, 2005) (requesting thatABA Ethics Committee issue a formal opin-ion regarding excessive defender case-loads); letter from Norman Lefstein, IndigentDefense Advisory Group (IDAG) Chair andSCLAID member, to ABA Ethics CommitteeChair, Charles E. McCallum (May 13, 2005)(requesting reconsideration of denial ofrequest to issue ethics opinion on defendercaseloads). All private letters referred to inthis article are on file with the authors.

11. The meeting with the ABA EthicsCommittee was attended by James R.Neuhard, Michigan State AppellateDefender and IDAG member; NormanLefstein, IDAG Chair and SCLAID member;Bill Whitehurst, SCLAID Chair (2003-06); andTerrence Brooks, Director, ABA Division ofLegal Services.

12. ABA Committee on Ethics and Prof’lResponsibility, Formal Opinions 347 (Dec.1,1981) and 96-399 (Jan. 18, 1996).These opin-ions deal with the ethical obligations of civillegal aid attorneys to provide competentrepresentation when funding is inadequateand caseloads excessive.

13. Formal Opinion 06-441 at 2 n.3.14. Id., at 3.15. These are obvious questions that

cannot be avoided in view of the ModelRules requirement that a lawyer be compe-tent and diligent in representing her clients.

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Moreover, Comment 2 to Rule 1.3, which iscited in the ABA’s Ethics Opinion, states thata lawyer’s workload “must be controlled sothat each matter may be handled compe-tently.” MODEL RULE 1.3, cmt 2.

16. Formal Opinion 06-441 at 4.17. Id.18. Id.19. Id.20. Id. at 5.21. Formal Opinion 06-441 at 5.22. Id. at 5 n.15.23. MODEL RULE 1.4(a)(3).24. Formal Opinion 06-441 at 5.25. Id. at 1.26. MODEL RULE 1.3, cmt. 1.27. See Ariz. Rev. Stat. Ann. Sec. 17B, R.

1(a), N. 41 and 25 (2005); Haas v. Colosi, 202Ariz. 56, 57, 40 P.3d 1249 (2002)(denial ofpublic defender’s motion to withdraw ascounsel is non-appealable, interlocutoryorder and thus appellate review is availableonly by special action, which is discretionarywith the appellate court).

28. See McKinney’s Consolidated Law ofNew York Annotated, C.P.L.R., Ch. 8, art. 4(Special Proceedings) (2006); McKinney’sC.P.L.R., Ch. 8 §§ 7801-06 (Nature ofProceedings) (2006); McKinney’s C.P.L.R. Ch.8, § 7803 (Question Raised) (2006).

29. See, e.g., Schwarz v. Cianca, 495 So.2d1208, 1209 (4th Dist. Fla. App. 1986) (trialcourt denied public defender’s motion towithdraw and appellate court heard thecase “upon an application for extraordinaryrelief,” treating “the application as a petitionfor writ of certiorari”).

30. State v. Peart, 621 P.2d 780 (La. 1993).In Peart, the Louisiana Supreme Court heldthat excessive caseloads and insufficientsupport services for public defenders creat-ed a presumption that indigent defendantswere not being provided constitutionallyrequired effective assistance of counsel. TheLouisiana Supreme Court heard the Peartappeal upon petition of Orleans Parishbecause the state’s constitution gives juris-diction to the state’s high court if a statute isheld unconstitutional.The trial court in Peartruled, inter alia, that the state’s system ofindigent defense as provided for underLouisiana law was unconstitutional asapplied in Orleans Parish.

31. Formal Opinion 06-441 at 6.32. MODEL RULE 1.16(c) (2006).33. Formal Opinion 06-441 at 5.34. Id. at 6.35.“A subordinate lawyer does not vio-

late the Rules of Professional Conduct if thatlawyer acts in accordance with a supervisorylawyer’s reasonable resolution of anarguable question of professional duty.”Model Rule 5.2(b).

36. MODEL RULE 5.2 cmt. 2.37. Formal Opinion 06-441 at 6.

38. Id.39. Id.40. Id. at 6 n.21. Both sections 1.13 (b)

and (c) are cited in the ethics opinion. Butsection (c) clearly does not apply to the situ-ation; it deals with the release of confidentialinformation protected by Rule 1.6 to per-sons outside the organization. MODEL RULES

1.13(b), (c) and 1.6. So the committee musthave thought that the language of 1.13 (b)was applicable to the excessive caseload sit-uation.

41. MODEL RULES 1.13(b).42. “Boards of Trustees should be pre-

cluded from interfering in the conduct ofparticular cases.”ABA Standards for CriminalJustice: Providing Defense Services,Standard 5-1.3 (3rd ed. 1992). The commen-tary to this black-letter statement explains:“The primary function of a board should beto make general policy, not to attempt todictate the conduct of particular cases.Consistent with this principle, several publicdefender statutes explicitly prohibit interfer-ence in the handling of specific cases bydefenders.” Id. at 20. See also NLADAGuidelines for Legal Defense Systems in theU.S., Standard 2.13 (1976); NLADA Standardsfor the Administration of Assigned CounselSystems, Standards 3.3.3(a) and 3.2.2(c)(1989).

43. Formal Opinion 06-441 at 7, citingModel Rule 5.1. See also Attorney GrievanceComm’n of Maryland v. Ficker, 706 A.2d 1045,1051-52 (1998) (supervising lawyer violatedRule 5.1 by, inter alia, assigning too manycases to supervised lawyer).

44. Formal Opinion 06-441 at 7.45. Another issue that we do not

address in this article, but which we believeis worthy of consideration, is whether adefender has any recourse when terminatedbecause of a disagreement over caseloadwith a supervisor or head of a defender pro-gram.

46. MODEL RULE 5.2.47. MODEL RULE 1.1.48. This prediction was offered by

Norman Lefstein, one of the authors of thisarticle, during a November 2005 meeting inOrlando of the NLADA’s American Council ofChief Defenders.

49. Michael P. Judge, the Los AngelesCounty Public Defender, gave permission tothe authors of this article to reference andquote from the letters that he sent in oppo-sition to the then proposed ABA ethics opin-ion. Letter from Michael P. Judge to BillWhitehurst, SCLAID Chair (2003-06), et al. 4(Dec. 2, 2005).

50. Letter from Michael P. Judge toMichael S. Greco, ABA President 2-3 (Jan. 11,2006).

51. See discussion supra notes 3-9 andaccompanying text.

52. PROPOSED OR AMENDED RULES OF PROF’LCONDUCT OF THE STATE BAR OF CALIFORNIA,PROPOSED RULE 5.2 (Responsibilities of aSubordinate Lawyer), available at http://cal-bar.ca .gov/calbar/pdfs/publ ic-com-ment/2006/Discussion-Draft.pdf (last visitedSept. 29, 2006).

53. Memorandum and Declaration ofMichael P. Judge submitted to the State Barof California Commission on the Revision ofthe Rules of Professional Conduct, datedSeptember 29, 2006 (on file with theauthors).

54. Id.55. State Bar of California Proposed

Formal Ethics Opinions, StandingCommittee on Prof’l Responsibility andConduct, Proposed Formal Op. Interim No.97-0007 (Duty to Provide CompetentRepresentation), available at http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10145&n=57672 (last visited Sept. 29,2006).

56. Telephone conversation betweenco-author Georgia Vagenas and LaurenMcCurdy of the State Bar of California’sOffice of Professional Competence (Sept. 29,2006) (confirming that Bar never issuedFormal Opinion Interim No. 97-0007).

57. Proposed Formal Op. Interim No. 97-0007, available at http://calbar.ca.gov/cal-bar/pdfs/public-comment/2004/2004-09-15_COPRAC_97-0007.pdf at 4-5, (last visitedSept. 29, 2006).

58. Ethics Advisory Opinion 04-12,South Carolina Bar (2004), available athttp://www.scbar.org/member/ethics.asp(last visited Sept. 30, 2006).

59. Id.60. Id.61. Opinion No. 90-10, Ethics

Committee, Arizona State Bar (1990), avail-able at http://www.myazbar.org/ethics/pdf/90-10.pdf at 7 (last visited Sept. 30,2006).

62. Id.63. Id.64. Opinion No. 03-01, American

Council of Chief Defenders (ACCD), NLADA(2003), available at http://www.nlada.org/DMS/Documents/1082573112.32/ACCD%20Ethics%20opinion%20on%20Workloads.pdf (last visited Sept. 30, 2006).

65. Id. at 5.Wisconsin Formal Opinion E-84-.11, reaffirmed in Wisconsin FormalOpinion E-91-3, is also consistent with thenew ABA opinion. Two other relevant ethicsopinions include Ethics Opinion 751, N.Y.State Bar Assoc. Committee on ProfessionalEthics (2002) (“an attorney representing agovernment agency may not undertakemore than the attorney can competentlyhandle, but the attorney may accept hissuperior’s reasonable resolution of anarguable question of professional duty”);

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and Legal Ethics Opinion 1798, StandingCommittee on Legal Ethics, Va. State Bar(2004) (a Commonwealth Attorney with anexcessive caseload that precludes compe-tent and diligent representation and thesupervisory attorney who assigns the exces-sive caseload violate ethics rules). Theseopinions, too, are obviously consistent withthe ABA’s new ethics opinion on excessivedefender caseloads. In fact, footnote 2 of theVirginia ethics opinion contains the follow-ing sentence: “Although this opinionaddresses workloads of prosecutors, exces-sive caseloads for public defenders andcourt-appointed counsel raise the same eth-ical problems if each client’s case cannot beattended to with reasonable diligence andcompetence.”

66. ABA Ten Principles of a Public DefenseDelivery System, Report to the ABA House ofDelegates No. 107 (adopted Feb. 5, 2002),available at http://www.abanet.org/legalservices/downloads/sclaid/indigentde-fense/tenprinciplesbooklet.pdf (last visitedSept. 30, 2006).

67. Id.68. ABA Standards for Criminal Justice:

Providing Defense Services (2d ed. 1979).69. ABA Standards for Criminal Justice:

Providing Defense Services 5-5.3 (3d ed.1992), available at http://www.abanet.org/crimjust/standards/defsvcs_toc.html (lastvisited Sept. 30, 2006).

70. ABA Standards for Criminal Justice:Defense Function 4-1.3(e) (3d ed. 1993),available at http://www.abanet.org/crimjust/standards/dfunc_toc.html (last vis-ited Sept. 30, 2006).

71. Providing Defense Services,Standard 5-5.3 (b) (“Courts should notrequire individuals or programs to acceptcaseloads that will lead to the furnishing ofrepresentation lacking in quality or to thebreach of professional obligations.”).

72. See, e.g., Standards for IndigentDefense Services in Non-Capital Cases, IndianaPublic Defender Commission, Sects. J(Caseloads of Counsel) and K (ExcessiveCaseloads) (1995), available athttp://www.in.gov/judiciary/pdc/docs/stan-dards/indigent-defense-non-cap.pdf (lastvisited Sept. 30, 2006); Standards for PublicDefense Services, Washington DefenderAssociation,Standard Three (Caseload Limitsand Types of Cases) (1989), available athttp://www.defensenet.org/resources/WDAstand.htm#Standard%20Three (last vis-ited Sept. 30, 2006).

73. But see, e.g., Ind. Sup. Ct. R. 24(B)(3)(2006) (Workload of Appointed and SalariedCapital Counsel), available athttp://www.in.gov/judiciary/rules/crimi-nal/#r24 (The Indiana Supreme Court adopt-ed this provision based upon a recommen-dation of the Indiana Public Defender

Commission.); Tenn. Sup. Ct. R. 13(e)(4)(D)(2006) (“The court shall not make anappointment if counsel makes a clear andconvincing showing that adding theappointment to counsel’s current workloadwould prevent counsel from renderingeffective representation in accordance withconstitutional and professional standards.”).

74. See State v. Peart, supra note 30.75. Green v. Washington, 917 F.Supp.

1238 (N.D.Ill. 1996).76. Stitka v. State, 579 So. 2d 102, 104

(Fla. 1991).77.See supra notes 27-30 and accompa-

nying text.78. Escambia County v. Behr, 384 So. 2d

147, 151 (England, C. J., concurring) (Fla.1980).

79.This section does not address the lia-bility of an assistant defender sued understate tort law for legal malpractice. See e.g.,Veneri v.Pappano,424 PA.Super.394,622 A.2d977 (1993).See also Polk County v.Dodson,454U.S. 312, 325 (1981) (a public defender repre-senting a client in the lawyer’s traditionaladversarial role was not a state actor under §1983 and is “[h]eld to the same standards ofcompetence and integrity as a privatelawyer”); Miranda v. Clark County, 319 F.3d465, 468 (2003) (public defender represent-ing a client in a traditional adversarial role isacting under the ethical standards of alawyer-client relationship and is held to thesame standards as a private attorney). Somejurisdictions, however, extend statutoryimmunity to public defenders, protectingthem against personal liability in malpracticeactions. See Schreiber v. Rowe, 814 So. 2d 396(Fla. 2002). See also Kennedy v. Carlson, 544N.W.2d 1 (Minn. 1966); Dziubak v. Mott, 503N.W.2d 771, 773 (Minn. 1993).

80. Section 1983 authorizes private par-ties to enforce their federal constitutionalrights against state and local officials andmunicipalities in the federal and statecourts. See 42 U.S.C. § 1983.

81. 319 F.3d 465, 469-71 (9th Cir. 2003).82. Id. at 466-67.83. Id. at 467.84. Id. at 469-70. In contrast, the court

held that unlike the county and head of thepublic defender office, the assistant publicdefender was not subject to § 1983 liabilitybecause he was not a state actor. Id. at 468.The court explained that because the assis-tant enters into an attorney-client relation-ship, it places him in a role that exempts himfrom liability under § 1983. Id. at 468-69.

85. Id. at 470.86. Id. at 471 (citing City of Canton v.

Harris, 489 U.S. 378, 388, 109 S.Ct. 1197(1989). In City of Canton, the Supreme Courtmade clear that to establish liability theremust be a direct causal link between amunicipal policy and the alleged constitu-

tional deprivation. Id. at 386. The Court,therefore, adopted the deliberate indiffer-ence requirement, holding that before alocal government entity may be held liablefor failing to act to preserve a constitutionalright,the plaintiff must demonstrate that theofficial policy evidences a deliberate indiffer-ence to her constitutional rights. Id. at 386-93.

87. See Doe v. Independent School Dist.,15 F.3d 443, 452-54 (5th Cir. 1994) (“The legalelements of an individual’s supervisory lia-bility and a political subdivision’sliability…are similar enough that the samestandards of fault and causation should gov-ern.”).

88. Shaw v. Stroud, 13 F.3d 791, 798-99(4th Cir. 1994).

89. Indigent defense boards may bedeemed to have the same characteristics asother municipal boards, such as governingand policy-making functions. Indigentdefense boards are general governing boardswhich are empowered to establish generalpolicy,but may not interfere in the conduct ofparticular cases. See ABA Standards forCriminal Justice: Providing Defense Services,Standard 5-1.3; NLADA Standards for LegalDefense Systems in the U.S., Standard 2.11(Functions of the Defender Commission).Defender commissions may provide inputand advice to the Defender Director and mayalso remove the Director from office. NLADAStandard 2.11 (c) and (f ).

90. 489 U.S. 658, 98 S.Ct. 2018 (1978).91. Id. at 690.92. Id. at 658.93. Id. at 690.The Monell Court held that

the language of § 1983 “plainly imposes lia-bility on a government that, under color ofsome official policy,“causes” an employee toviolate another’s constitutional rights.” Id. at692. On the other hand, in a case against theactual perpetrator of a constitutional viola-tion,the standard of liability derives from theparticular constitutional provision at issue,not from § 1983. Daniels v. Williams, 474 U.S.327, 329-30, 106 S.Ct. 662, 664 (1986);Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d745, 759 (5th Cir. 1993).

94. Id. at 690.95. See also Pembaur v. City of

Cincinnatti, 475 U.S. 469, 480, 106 S.Ct. 1292(1986).

96. 489 U.S. 378, 386-93, 109 S. Ct. 1197(1989) (holding that a city’s failure to trainsubordinates may result in § 1983 liabilitywhere the failure amounts to deliberateindifference to the potential violation of aconstitutional right).

97. 996 F.2d 745, 746 (5th Cir. 1993).98. Gonzalez, 996 F.2d at 753-54.99. Id. at 756-60.100. Id. at 762.101. Id.

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102. Gonzalez, 996 F.2d at 762.103. City of Canton, 489 U.S. at 396

(O’Conner, J., concurring) (“The lower courtsthat have applied the ‘deliberate indiffer-ence’ standard we adopt today haverequired a showing of a pattern of violationsfrom which a kind of ‘tacit authorization’ bycity policymakers can be inferred.”) (Citing,e.g., Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983). See also, Jones v. City ofChicago, 856 F.2d 985, 992-93 (7th Cir. 1988)(defendants “must know about the conductand facilitate it, approve it, condone it, orturn a blind eye for fear of what they mightsee. They must act either knowingly or withdeliberate, reckless indifference”).

104. City of Canton, 489 U.S. at 392, 396.105. On September 16, 2006, however,

an isolated, albeit significant developmentoccurred in Oregon, where the Oregon StateBar House of Delegates passed a resolutionto adopt ABA Formal Opinion 06-441 andinstructed its state’s ethics body to issue asimilar opinion applicable to Oregondefenders.This development was due to theefforts of Ross Shepard, former DefenderDirector of the NLADA.

106. Abdon M. Pallasch, Call to LimitCases Amuses Public Defenders, CHI. SUN-TIMES,July 24, 2006, available at http://www.findar-ticles.com/p/articles/mi_qn4155/is_2006072

4/ai_n16642443(last visited on October 6,2006).

107. Id.108. Id.

109. ILL.RULES OF PROF’L CONDUCT,Rules 1.1and 1.4 (The Illinois Rules are identical toABA Model Rules and require competenceand diligence.) ■

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About the Authors

Norman Lefstein is professor of law anddean emeritus atIndiana UniversitySchool of Law -Indianapolis. Since1990, he has chairedthe Indiana PublicD e f e n d e rCommission. He isalso a member of

the ABA Standing Committee on LegalAid and Indigent Defendants and chairsits Indigent Defense Advisory Group.

Norman LefsteinProfessor of Law and Dean Emeritus Lawrence W. Inlow Hall Indiana Univ. Sch. of Law - Indianapolis 530 West New York Street Indianapolis, Indiana 46202 317-274-8241 Fax 317-278-7563

nlefstei@iupui.edu EE--MMAAIILL

Georgia Vagenas is the Assistant Coun-sel to the AmericanBar Association’sStanding Commit-tee on Legal Aid &Indigent Defen-dants. Previously,she represented in-digent defendantsin appellate pro-

ceedings, and also clerked for the ChiefJustice of the New Hampshire SupremeCourt.

Georgia Vagenas321 N. Clark StreetChicago, IL 60610312-988-5765Fax 312-988-5483

vagenasg@staff.abanet.orgEE--MMAAIILL

would shoot for the lame-duck session,which I think is going to start onNovember 13. But the timeline for passageis totally unpredictable. Not until nextyear at the earliest.”

Asked whether he would have anysupport for the legislation, Specterquipped, “Yes, Sen. Leahy is for it.”

A transcript of Specter’s remarksbegins on page 55 of this issue.

Lynne StewartSentenced to Prison,But Free Pending Appeal

Ex-criminal defense lawyer LynneStewart was sentenced to 28 months infederal prison Oct. 16 on terrorismcharges arising out of her representationof an Egyptian sheik convicted of conspir-ing to bomb New York City landmarks in1993. The government sought the maxi-mum sentence of 30 years.

Stewart was convicted in February2005 for allegedly helping her client, SheikOmar Abdul-Rahman, communicate withan Egyptian terrorist organization while

representing the sheik in post-convictionmatters.

Stewart did not dispute that she vio-lated a U.S. Bureau of Prisons “specialadministrative measure” under which herclient was held incommunicado as athreat to public safety. But in a letter to thecourt, she characterized her actions as“naïve” and “careless.”

U.S. District Judge John G. Koeltl, ofthe Southern District of New York inManhattan, said at the sentencing hearingthat Stewart’s actions were an “egregiousand flagrant abuse” of her license to prac-tice and that her messages could have hadpotentially “lethal” consequences. But thejudge noted her decades of service repre-senting the poor and the despised.

Koeltl allowed Stewart to remain freeon bail pending her appeal, specificallyfinding that she posed no threat and thathe expected she would raise substantialquestions of law or fact on appeal.

Stewart has consistently denied sheever knowingly furthered any cause ofviolence. She has admitted she intention-ally violated the Bureau of Prisons’ “spe-cial administrative measures” underwhich her client was being held incom-municado by speaking to a reporter,which she now regrets.

NACDL was one of several organiza-

tions that filed amicus curiae briefs sup-porting Stewart over the past four and onehalf years. With the trial court proceed-ings at a close, NACDL President MartinS. Pinales released a statement.

“Any sentence of incarceration is sub-stantial for a 67-year-old breast cancersurvivor,” Pinales said. “I am heartenedthat Judge Koeltl had the decency andcourage to allow Ms. Stewart to remainfree on bail while her case works its waythrough the federal appeals process.

“Every person accused in our courtsis constitutionally-entitled to legal repre-sentation. Lynne Stewart has lived her lifeas a zealous advocate.”

Other legal experts criticized the gov-ernment, saying that the JusticeDepartment was trying to intimidate thedefense bar.

“There’s no doubt the governmenthas tried to use this case to chill effectiveadvocacy in terror cases,” NACDL PastPresident Neal R. Sonnett told theWashington Post. “I’m delighted the judgewas not swayed by the frenzy over terror-ism.”

Jo Ann Harris, the former assistantattorney general who approved theRahman indictment, wrote a letter to thecourt calling Stewart’s prosecution“unwarranted overkill.” ■

NACDL NEWS(Continued from page 8)