EEPING DEFENDER ORKLOADS MANAGEABLE - National Criminal … · “employ the more intrusive and...

KEEPING DEFENDER

WORKLOADS MANAGEABLE

I N D I G E N T D E F E N S E S E R I E S

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

MonographMonograph

#4

KEEPING DEFENDER


U.S. Department of JusticeOffice of Justice Programs

810 Seventh Street NW.Washington, DC 20531

John AshcroftAttorney General

Office of Justice ProgramsWorld Wide Web Home Page

www.ojp.usdoj.gov

Bureau of Justice AssistanceWorld Wide Web Home Page

www.ojp.usdoj.gov/BJA

For grant and funding information contactU.S. Department of Justice Response Center

1–800–421–6770

This document was prepared by The Spangenberg Group for the Bureau of Justice Assistance,Office of Justice Programs,U.S.Department of Justice. The opinions, findings, and conclusionsor recommendations expressed in this document are those of the authors and do not neces-sarily represent the official position or policies of the U.S.Department of Justice.

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which alsoincludes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justiceand Delinquency Prevention, and the Office for Victims of Crime.

KEEPING DEFENDER


January 2001

NCJ 185632

Prepared by The Spangenberg Group

iiiBUREAU OF JUSTICE ASSISTANCE

Foreword

Adequately supporting indigent defenders is critical to preserving the con-stitutional rights of individuals accused of crimes. To function properly, thecriminal justice system needs all of its components, including defense, oper-ating effectively.

One important way we can bolster indigent defense in this country is edu-cating criminal justice practitioners, elected officials, and the public aboutthe challenges facing the indigent defense community. This series will helpaccomplish that goal by addressing key issues that attorneys and managersin indigent defense systems struggle with in their day-to-day work.

The subject of this report, finding ways to better manage defender work-loads, is at the heart of ensuring that the administration of justice is fair andequitable. Every day, defender offices and assigned counsel are forced tomanage too many clients with inadequate resources. Too often, the qualityof service suffers, jeopardizing one of our most important constitutionalrights: the right to effective counsel.

It is our hope that the information and recommendations provided hereserve as a valuable resource for all of us working to improve the justice system.

Bureau of Justice Assistance

vBUREAU OF JUSTICE ASSISTANCE

Contents

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Caseload v. Workload . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Importance of Uniform Definition of Case . . . . . . . . . . . . . . . . . . 4

Ethical Considerations: When To Say Enough? . . . . . . . . . . . . . . 4

III. Caseload Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

National Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Case-Weighting Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statutory Caseload Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Contractual Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Caseload Standards for Private Attorneys . . . . . . . . . . . . . . . . . 14

Performance Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV. Withdrawal From Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Systemic Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Malpractice Claims in State Court and Federal Immunity . . . . . . 22

V. Strategies for Keeping Workloads Manageable . . . . . . . . . . . . . . . . 25

VI. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

VII. For More Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1BUREAU OF JUSTICE ASSISTANCE

In 1991, Rick Tessier, a youngpublic defender working in NewOrleans, was appointed to representLeonard Peart. At the time, Tessierwas handling 70 active felonies.Peart was charged with armed rob-bery, aggravated rape, aggravatedburglary, attempted armed robbery,and first-degree murder. Tessier’sclients typically were incarceratedbetween 30 and 70 days before hemet with them. In the first 7 monthsof 1991, Tessier represented 418defendants. His office had minimalinvestigative support and no fundsfor expert witnesses.

Tessier filed a motion to have thetrial court declare, before dispositionof Peart’s case, that Tessier was un-able to provide Peart with effectiveassistance of counsel, given his pend-ing workload and lack of investiga-tive and expert resources. Tessier’smotion resulted in a sharply wordedadmonition by the Louisiana SupremeCourt that the state legislature musttake action to remedy indigent de-fense in Louisiana. The situation wasso bad that the court threatened to“employ the more intrusive and

specific measures it has thus faravoided to ensure that indigent defen-dants received reasonably effectiveassistance of counsel.”1

While refusing to make a blanketpretrial finding that Tessier providedineffective assistance to his clients,the court instructed the trial court towhich Tessier was assigned to holdindividual hearings for all defendantsmaking such a pretrial assertion. Fur-thermore, the trial court was orderedto apply a rebuttable presumptionthat such defendants were not receiv-ing assistance of counsel effectiveenough to meet constitutionally re-quired standards.

Tessier’s experience conjuresstereotypical images of young, over-worked lawyers juggling too manyfiles, too many courtrooms, and toomany clients at the expense of theindigent defendants they represent.Although in many instances thispublic image is a far cry from thetruth, excessive workload is one ofthe most pressing issues facing indi-gent defense programs in the UnitedStates.

I. Introduction

About the AuthorsThis report was researched and written by the staff of The SpangenbergGroup, a nationally recognized criminal justice research and consulting firmworking to improve the delivery of indigent defense services. Located in WestNewton, Massachusetts, The Spangenberg Group has provided research andtechnical assistance for justice organizations in every state in the nation.

Historically, public defenders havehad little control over the number ofcases they receive. Most public de-fender offices began by representinga small percentage of criminal defen-dants. Today, in some jurisdictions,public defender offices are appointedas many as 80 percent of all criminalcases. As populations and caseloadshave increased, many public defenderoffices have been unable to obtaincorollary increases in staff. Every day,defenders try to manage too manyclients. Too often, the quality of ser-vice suffers. At some point, even themost well-intentioned advocates areoverwhelmed, jeopardizing their clients’constitutional right to effective counsel.

The problem is not limited to pub-lic defenders. Individual attorneyswho contract to accept an unlimited

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KEEPING DEFENDER WORKLOADS MANAGEABLE

number of cases in a given periodoften become overwhelmed as well.Excessive workloads even affectcourt-appointed attorneys. Rules ofprofessional responsibility make itclear that every lawyer must main-tain a reasonable workload. In prac-tice, meeting this standard has beenmore difficult for lawyers who repre-sent indigent criminal defendantsthan for those who represent payingclients.

In the past decade, defender orga-nizations, state legislatures, statecourts, and other entities have devel-oped approaches to managing theworkloads of attorneys who repre-sent indigent defendants. This mono-graph discusses these approachesand presents strategies for keepingcaseloads manageable.


II. Caseload v. Workload

Many practitioners still tend tothink of their caseload only in termsof the number of clients they areassigned to represent. Yet, this cap-tures only a portion of their fullworkload. With the advent of sen-tencing guidelines and the expandeduse of mandatory minimum sen-tences, the complexity of criminaldefense practice has increased dra-matically. There are fewer and fewer“easy” cases, and with the growth ofpublic defender programs manyattorneys find themselves spendingmore and more time on administra-tive matters. Thus, the amount oftime an attorney must spend tocompetently represent a client is notaccurately reflected by the numberof clients alone.

Likewise, given the differentamounts of time required for differ-ent kinds of cases, measuring case-load in terms of the number ofclients is not an accurate means ofcomparing the amount of work doneby attorneys handling different typesof cases.

In addition to zealous advocacy in court, effective defense workrequires client contact, investigation,legal research, social work, confer-ences with prosecutors, and casepreparation. In the chapter “CopingWith Excessive Workload” of theAmerican Bar Association’s (ABA)Ethical Problems Facing the CriminalDefense Lawyer: Practical Answers

to Tough Questions, authors EdwardC. Monahan and James Clark setout the dimensions of competenceand quality for criminal defenselawyers as defined by the ABA inseveral substantive areas:

• Legal knowledge and skill.

• Timeliness of representation.

• Thoroughness and preparation.

• Client relationship and interviewing.

• Communicating with the accused.

• Advising the accused.

• Investigation.

• Trial court representation.

• Sentencing.

• Appellate representation main-taining competence and ensuringquality.

Each of these facets of effectiverepresentation is compromised whencaseloads are too high. Defenders’job responsibilities extend beyondrepresenting clients. They consultwith colleagues about their own andothers’ cases. They keep abreast ofrecently decided cases and new lawsand rules by attending training ses-sions and through routine professionaldevelopment reading. All defendersmust perform administrative tasks,


4

and many have supervisory responsi-bilities, often of both support staff andlawyers. In addition, public defendermanagers have commitments to par-ticipate in community and policymeetings. All of these responsibilitiesdetract from the time a lawyer canspend on individual case work but are essential to the functioning of an effective defender office. In short, adefenders overall workload comprisesa defenders active caseload com-bined with these duties.

Many defenders who face exces-sive caseloads make decisions anal-ogous to those made by physiciansin a M.A.S.H. unit. They performtriage. Defendants facing seriousfelony charges receive primaryattention, whereas defendants facingmisdemeanor, juvenile delinquency,or lower-level felony charges receivemuch less. Too often in these cases,early investigation and regular clientcommunication fall by the wayside.2

Importance of UniformDefinition of a Case

In developing workload or caseloadstandards for a given jurisdiction, it iscritical to use a common definition ofwhat constitutes a case. The NationalCenter for State Courts and the Con-ference of State Court Administra-tors, in State Court Model StatisticalDictionary, 1989, instruct courtadministrators to “[c]ount eachdefendant and all charges involved ina single incident as a single case.”3 Indeveloping its standards, the NationalAdvisory Commission (NAC) defineda case as “a single charge or set of

charges concerning a defendant (orother client) in one court in one pro-ceeding.” Whereas it is important forthe indigent defense system (includ-ing public defenders, court-appointedattorneys, and contract defenders) ina given jurisdiction to count casesusing a uniform definition, it is opti-mal when the courts and prosecutionin the jurisdiction also use the samedefinition. This affords the greatestopportunity to develop and approvebudget requests for the adjudicationcomponent of the criminal justicesystem accordingly on a systematicand balanced basis.

Ethical Considerations:When To Say Enough?

The first rule in ABA’s Model Rulesof Professional Conduct (as amend-ed through August 1998) requires alawyer to provide competent repre-sentation to a client.4 Model Rule 1.3requires that a lawyer “act with rea-sonable diligence and promptness.”Model Rule 1.4 covers attorney-client communication, mandatingthat a lawyer keep a client reason-ably informed about the situationand promptly reply to reasonablerequests for information. Model Rule1.7(b) prohibits attorneys from rep-resenting clients “if the representa-tion of that client may be materiallylimited by the lawyer’s responsibili-ties to another client.” Many publicdefenders fail to acknowledge theconflict of interest that arises whenexcessive caseloads force them tochoose which of their clients willreceive the defense to which theyare entitled.

4

CASELOAD V. WORKLOAD


In State v. Smith, considered bymany defense practitioners to be themost important opinion on publicdefender workload, the ArizonaSupreme Court found that MohaveCounty’s contract system violatedindigent defendants’ rights to dueprocess and counsel as guaranteedby the Arizona and United StatesConstitutions.5

The court, placing blame for thesystem with the participating attor-neys and the county, reasoned thatthe attorneys are usually in a betterposition to recognize when a con-tract will likely result in inadequaterepresentation than is the countyboard of supervisors. The court quot-ed the Arizona Rules of ProfessionalResponsibility, which forbids attorneysfrom accepting employment that can-not be adequately performed, andcited ABA standards on delay andpunctuality (Standard 4–1.2) andworkload (Standard 5–4.3).

ABA Standards for Criminal Jus-tice, Providing Defense Services (3ded., 1992) and The Defense Function(3d ed., 1993), establish quality rep-resentation as the benchmark forcriminal defense lawyers. Standard4–1.2, “The Function of DefenseCounsel,” states that the basic dutyof defense counsel is to “rendereffective, quality representation.”Standard 5–1.1 reinforces this princi-ple: “The objective in providingcounsel should be to assure thatquality representation is afforded.”

The fact that overburdened attor-neys are reluctant to stand up and

say enough is enough makes theproblem even more difficult toaddress. Reasons for this reluctanceinclude ego, fear of rocking the boatin the local criminal system, and fearof reprobation from the appropriatedisciplinary committee of the gov-erning bar if an attorney suggeststhat he or she is unable to provideeffective representation.

This fear is particularly acute forattorneys such as public defendersand court-appointed attorneys whoserve at the will of a particular judge.ABA cautions against the potentialconflict caused by such an arrange-ment in Standard 5–1.3(a) of theStandards for Criminal Justice, whichstates:

The selection of lawyers for spe-cific cases should not be madeby the judiciary or elected offi-cials, but should be arranged forby the administrators of thedefender, assigned counsel, andcontract-for-service programs.

Moreover, it is the primary respon-sibility of the judiciary to ensure thatcourt proceedings are fair and equi-table. If a judge with responsibilityfor appointing counsel in his or hercourtroom recognizes that over-whelming caseloads may jeopardizea defendant’s right to competent representation of counsel, it is thejudge’s responsibility to identify andrectify the situation.

In their guide to coping with exces-sive caseloads, Monahan and Clarkexplain how attorneys should—in


6

fact, must—deal with these situations:

A lawyer who has so muchwork, so many cases, so manyother clients that she is material-ly limited in her ability to effec-tively represent another clienthas an impermissible personalconflict of interest and cannotassume responsibility for anadditional client.

Rules clearly establish that alawyer cannot ethically acceptanother case or other workwhen she has so much workthat accepting another case willpreclude her from competentlyrepresenting the new client orperforming any other ethicalrequirements, for example, com-municating fully and promptlywith the client, or investigatingthe case and adequately advis-ing the client.6

Ethical guidelines set the ultimatestandard for determining when anattorney carries an excessive case-load. However, numerical standardsalso play an important role in puttingconcerns about excessive caseload in context. Some standards establisha limited number of cases that adefender should not exceed in anygiven year. Others are aspirational,encouraging indigent defense lawyersto accept reasonable caseloads inaccordance with professional respon-sibility requirements.

Caseload standards take differentforms, including statute, court rule,contractual terms, court opinion,and published guidelines by nationalorganizations. The latter—nationalstandards promulgated by organiza-tions including ABA, the NationalLegal Aid and Defender Association(NLADA), and NAC—typically formone starting point for states andlocalities that develop their ownstandards. The second starting pointis a case-weighting study, in whichcaseload/workload standards aredeveloped to reflect the actual caseshandled in a particular jurisdiction.

Programs that have developedsuccessful caseload or workload pro-grams share a common set of char-acteristics, including

• A sound management informationsystem based on reliable andempirical data.


• A statistical reporting procedurethat has been accepted by thefunding sources.

• A sound managerial/administra-tive system.

• The ability to tie caseload stan-dards to budget requests.

• A mechanism (e.g., a statute orcourt rule) that kicks in oncecaseloads reach an excessivelevel to prevent defenders frombeing assigned to additionalcases.

• The ability to mobilize stronglocal support.

Note that a caseload standard isjust a beginning. Without adequatesupport staff, training, and supervi-sion, a standard will not do much toalleviate case overload. Some juris-dictions, such as Florida and Indiana,have used unit staffing formulas inconjunction with attorney workloadstandards. In such a system, ratios ofadequate support staff to attorneysare developed. For example, forevery four felony attorneys thereshould be one paralegal, one investi-gator, and one secretary. The bottomline is that caseload or workload stan-dards should be viewed as one part ofan overall program to ensure thatdefender offices have adequate staffand resources to properly representclients.

III. Caseload Standards


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them. Washington state law requirescounties and municipalities to estab-lish caseload standards and encour-ages counties and municipalities touse the Washington Defender Associ-ation’s standards as guidelines.

In the absence of guidelines creat-ed for a particular jurisdiction, NACstandards are an effective tool tohelp public defenders plan and dis-cuss resource needs with policymak-ers and budget committees. How-ever, NAC standards are limited todescribing resource needs strictlyaccording to the raw number ofcases for which an attorney isresponsible. They do not take intoconsideration administrative orsupervisory work, waiting or traveltime, or professional developmentactivities. Furthermore, they do notdifferentiate the amount of timerequired to work on various types ofcases within a case category. Forexample, all felonies, whetherstraightforward burglary chargesor complicated child sex abusecharges, are given equal weight byNAC standards.

Case-Weighting StudiesSeveral public defender offices

have developed their own caseloadstandards, using either the Delphimethod or the time record-basedcase-weighting method. Of the twomethods, the latter is most reliable.

The Delphi and Case-Weighting Methods

Under the Delphi method, a sam-ple of attorneys is given a series of

National StandardsThe only national body that has

attempted to quantify a maximumannual public defender caseload isNAC, which published its standardsin 1973.7 The commission, made upof elected officials, law enforcementofficers, corrections officials, com-munity leaders, prosecutors, judges,and defense attorneys, was appoint-ed by the administrator of the federalLaw Enforcement Assistance Admin-istration. In NAC’s report, Standard13.12 on courts states:

The caseload of a public defen-der attorney should not exceedthe following: felonies per attor-ney per year: not more than150; misdemeanors (excludingtraffic) per attorney per year:not more than 400; juvenilecourt cases per attorney peryear: not more than 200; MentalHealth Act cases per attorneyper year: not more than 200;and appeals per attorney peryear: not more than 25.8

NAC caseload standards haveserved as a benchmark for otherentities. Commentary to Standard 5–5.3 of ABA’s Standards Relatingto the Administration of CriminalJustice references the public defend-er caseload standards developed byNAC, noting they “have provenresilient over time and provide arough measure of caseloads.”9

Additionally, some state organiza-tions, such as the Washington De-fender Association, have adoptedNAC standards or standards similar to

Case Type Urban Office Rural OfficeFelony 1 6 6Felony 2–3 80 80Felony 4–6 241 191Juvenile 310 305Misdemeanor 310 598Traffic 259 285

scenarios designed to reflect typicalcases and clients to be found in anypublic defender’s workload. Theattorneys are asked to estimate thetime involved in handling the variousscenarios. This results in caseweights based on “strong educatedguesses” about the relative timerequired to complete various tasks.

The case-weighting method usesdetailed time records kept by publicdefender attorneys over a period,typically ranging from 7 to 13weeks. The time records providea means by which caseload (the number of cases a lawyer handles)can be translated to workload (theamount of effort, measured in unitsof time, for the lawyer to completework on the caseload). In the broad-est context, weights can be given tothe total annual caseload of an officeto compare with the next year’santicipated volume of cases. Assum-ing that records are kept of attorneytime expended in each case, thetranslation of projected caseload intoprojected workload can be accom-plished with some precision.

CASELOAD STANDARDS


Table 1: Colorado Case-Weighting Standards

Colorado Case-Weighting Study

In 1996, The Spangenberg Groupcompleted a case-weighting studyfor the Colorado state public defend-er.10 Since then, the Colorado publicdefender has used the study’sweighted caseload formula to deter-mine staffing needs in regional trialoffices. It justifies its budget requestswith the formula, which sets out dif-ferent annual caseload standards fortrial attorneys working in urban andrural offices.11 The standards areshown in table 1.

The Colorado legislature has ac-cepted the formula for purposes ofboth budgeting and analyzing the fis-cal impact of proposed legislation.As a result, the Colorado publicdefender office reports that its attor-ney staffing levels have been ade-quately funded in recent years. Itbelieves that a critical element in theacceptance of the study was obtain-ing legislative input in the initialstages of the study’s design. Thisinvolvement, together with theempirical nature of the study, give

credibility to the case-weightingstudy’s formula for staffing needs.

State StandardsUsing a combination of NAC stan-

dards and case-weighting studies asthe starting point, several stateshave implemented workload guide-lines for public defenders. Table 2shows the standards used in 15states. In reviewing the table, notethat making comparisons betweenvarious indigent defense systems isan imperfect science, because of themany variables affecting indigentdefense services in each state.12 Nat-urally, criminal practices and proce-dures vary from state to state andoften between jurisdictions withina single state. Despite this caveat,table 2 illustrates how differentstates use workload standards.These workload standards representthe maximum annual number ofcases a single attorney should carryif that attorney handles only thattype of case. For example, moststates with misdemeanor caseloadstandards suggest that publicdefenders handle no more than 400misdemeanor cases in a single year,if misdemeanors are the only type ofcase the attorney handles.

Additionally, many of these stateshave further restrictions. To cite oneexample, the Indiana Public Defend-er Commission’s workload standardswere designed for use by indigentdefense practitioners who have ac-cess to adequate support staff, inrecognition of the important rolesupport staff play in providing


10

quality indigent defense.13 The Indi-ana standards in table 2 representthe caseload standards for officesthat maintain an adequate level ofsupport staff consistent with theguidelines listed below.

The ratio of support staff to attorneys should be as follows:

• Paralegal- Felony, 1:4- Misdemeanor, 1:5- Juvenile, 1:4- Mental Health, 1:2

• Investigator- Felony, 1:4- Misdemeanor, 1:6- Juvenile, 1:6

• Law Clerk Appeal, 1:2

• Secretary- Felony, 1:4- Misdemeanor, 1:6- Juvenile, 1:5

For county public defender officesthat do not maintain the requiredratios of support staff to attorney,annual caseloads are reducedaccordingly (to a maximum of100–150 felonies, 300 misde-meanors, 200 juvenile cases, or 20appeals per attorney per year).

Also, Indiana’s experience showshow successful statewide indigentdefense commissions can be in pro-mulgating standards and guidelinesdesigned to improve and ensure uni-formity of practice statewide. Thesecommissions (currently, 31 stateshave a commission of some kind)

Table 2: Maximum Public Defender Workload Standards in Selected States

State Felony Misdemeanor Juvenile Appeals AuthorityArizona 150 300 200 25 State of Arizona v. Joe

U. Smith, 681 P. 2d 1374 (1984).

Colorado* 80– 310– 305– – The Spangenberg 2411 5982 3103 Group. Weighted-

Caseload Study for the Colorado State Public Defender. November 1996.

Florida* 200 400 250 50 Florida Public Defend-er Association. Com-parison of Caseload Standards. July 1986.

Georgia 150 400 200 25 Georgia Indigent De- fense Council. Guide-lines of the Georgia Indigent Defense Council for the Opera-tion of Local Indigent Defense Programs.October 1989.

Indiana 200 400 250 25 Indiana Public De- fender Commission.Standards for Indigent Defense Services in Non-Capital Cases: With Commentary. January 1995.

Louisiana 200 450 250 50 Louisiana IndigentDefense Board. Louisiana Standards on Indigent Defense.1995.

Massachusetts 200 400 300 – Committee for Public Counsel Services. Man-ual for Counsel As-signed Through the Committee for Public Counsel Services: Poli-cies and Procedures.June 1995.

Minnesota* 100– 250– 175 – Minnesota State Public 1204 4005 Defender. Caseload

Standards for District Public Defenders in Minnesota. October 1991.

Missouri 40– 450 280 28 Missouri State Public 1806 Defender System.

Caseload Committee Report. September 1992.

Nebraska 507 – – 40 Nebraska Commission on Public Advocacy. Standards for Indigent Defense Services in Capital and Non-Capi-tal Cases. May 1996.

CASELOAD STANDARDS



12

Table 2: Maximum Public Defender Workload Standards in Selected States (continued)

State Felony Misdemeanor Juvenile Appeals AuthorityNew York* 150 400 – 25 Indigent Defense Orga-(City) nization Oversight

Committee. General Requirements for All Organized Providers of Defense Services to Indigent Defendants.July 1996.

Oregon 240 400 480 – Oregon State Bar. Indigent Defense Task Force Report.September 1996.

Tennessee 55– 500 273 – The Spangenberg 3028 Group. Tennessee

Public Defender Case-Weighting Study.May 1999.

Vermont 150 400 200 25 Office of the Defender General. Policy of the Defender General Con-cerning Excessive Workloads for Public Defenders. October 1987.

Washington 150 300 250 25 Washington Defender Association. Standardsfor Public Defender Services. October 1989.

*Jurisdictions in which caseload standards have been developed through case-weighting studies.1 Colorado's felony caseload standards establish thresholds based on the severity of the chargeand whether defenders are in urban or rural offices. For Felony 2 and 3 cases, the standard is 80cases per year. For Felony 4, 5, and 6 cases, the standard in rural areas is 191 cases and in urbanareas is 241 cases.2 Colorado’s misdemeanor caseload standards establish thresholds based on the severity of thecharge and whether defenders are in urban or rural offices. The standards for misdemeanors inurban areas are 259 traffic and 310 nontraffic cases per year. The standards for misdemeanors inrural jurisdictions are 285 traffic and 598 nontraffic cases per year.3 Colorado’s juvenile delinquency caseload standards establish thresholds based on whetherdefenders are in urban or rural offices. For juvenile delinquency cases in urban areas, the standardis 310 cases per year. In rural jurisdictions, the standard is 305 cases.4 Minnesota’s caseload standards establish a range of cases a public defender may handle accord-ing to local practices throughout the state. Additionally, Minnesota has established a caseloadstandard (3 cases per year) specifically for homicide cases.5 Minnesota’s misdemeanor caseload standards establish a threshold based on the severity of thecharge. For gross misdemeanors, a public defender should not handle more than 250 to 300cases per year, depending on local practices. For all other misdemeanors, the standard is 400cases per year.6 Missouri’s caseload standards establish thresholds based on the severity of the felony charge.For Felony A and B cases, the standard is 40 cases per year. For Felony C and D cases, the stan-dard is 180 cases.7 The Nebraska Commission on Public Advocacy has established a felony caseload standard foronly the most serious category of felonies. The standard represents the number of violent crimecases (rape, manslaughter, 2-degree murder, sexual assault) that a single attorney could handleduring a year if those cases were the only type of cases handled during the year.8 Tennessee’s felony caseload standards establish thresholds based on the severity of the charge.The standard is 55 per year for Felony A cases; 148 for Felony B cases; and 302 for Felony C, D,and E cases.

CASELOAD STANDARDS


provide oversight and troubleshootto avoid serious problems in the deliv-ery of indigent defense services.14 InIndiana, the commission’s noncapitalstandards were adopted in 1995. By2000, 42 of the state’s 92 countieswere in compliance with its noncapi-tal standards.

Statutory Caseload Provisions

Several jurisdictions have publicdefender workload limitations writteninto statutory provisions. Most donot set specific numeric limitationsbut include language requiring publicdefenders to accept caseloads thatallow them to provide effective rep-resentation, or representation that comports with codes of professionalresponsibility. At least two states’statutory provisions contain specificannual caseload caps based oncase-weighting studies conductedfor the statewide public defenderorganizations.

New Hampshire requires thestatewide public defender programto adopt a plan for the allocation ofcases between public defender staffattorneys and assigned counsel.15

The purpose of the plan is twofold.First, it establishes caseload limitsfor defender attorneys in accordancewith professional standards underthe code of professional responsibil-ity. Second, it provides for appoint-ment of assigned counsel when public defender attorneys reachmaximum caseload limits. Pursuantto the statutory requirement, a case-load plan loosely modeled after NAC

standards is incorporated into thecontract between the public defenderand the state. Unlike NAC standards,the New Hampshire plan gives someconsideration to factors such as trav-el time and average case processingtime.

The New Hampshire publicdefender does not rely on the case-load plan alone. In fact, greateremphasis is placed on an informal,weighted caseload plan developedover the years that guides the publicdefender program’s internal caseassignment process. Case weights,or units, have been developed basedon summaries of time reported bypublic defenders on how long theydevote to individual cases.

Washington state mandates eachcounty or city to adopt standards forthe delivery of public defense ser-vices, whether those services areprovided by contract, assignedcounsel, or a public defender office.16

Among other things, the standardsare to include caseload limits, andthe standards endorsed by the Wash-ington Defender Association “mayserve as guidelines to contractingauthorities.”

Wisconsin’s statute sets out specif-ic annual caseload standards forassistant state public defenders thatare used to help make budget decisions.17 The standards take intoaccount the results of a case-weightingstudy conducted by The SpangenbergGroup for the Wisconsin state publicdefender in 1990, and they areoccasionally adjusted by the state


14

legislature, with the input of thestate public defender, to reflectchanges in practice. Wisconsin’sstatute also acts as a safety valvewhen caseloads reach the standardsset out in the statute by allowing thepublic defender to seek legislativeapproval to assign overload cases tothe private bar.

Contractual Standards Like public defenders, contract

attorneys can run into excessiveworkload situations, particularlywhen they have entered into low-bid, flat-fee contracts to handle allof the cases in a given jurisdictionfor a set price. In State v. Joe U.Smith, the Arizona Supreme Courtstruck down Mohave County’s contract defense system, whichsolicited sealed bids from privatebar members for several years.18 Inthe underlying case, the defendantwas represented by a lawyer whocontracted with Mohave County torepresent indigent defendants on apart-time basis. (The lawyer alsohad a civil practice). The courtfound that the contract lawyer handled 149 felonies, 160 misde-meanors, 21 juvenile cases, and 33other types of cases in 11 months.

The Arizona Supreme Court opinion established a widely citedstandard for assessing the constitu-tionality of a low-bid contract system.The decision cites the NLADA Guide-lines for Negotiating and AwardingIndigent Defense Contracts and ABA’sStandards for Criminal Justice andconcludes that Mohave County’s

system did not conform with the stan-dards and guidelines for four reasons:(1) it did not take into account thetime the attorney was expected tospend in representing his or her shareof indigent defendants; (2) it did notprovide for support costs for theattorney, such as investigators, para-legals, and law clerks; (3) it did nottake into account the complexity ofeach case; and (4) it did not take into account the competency of theattorney.

In Nebraska, a statutory provisiongoverns indigent defense contrac-tors’ caseloads. Neb. Rev. Stat. §23–3406 (1999) states that anycontract negotiated between anattorney and a county for the provi-sion of indigent defense servicesmay specify a maximum allowablecaseload for each full- or part-timeattorney working under the contract.Although no specific numbers areprescribed, caseloads “shall alloweach lawyer to give every client thetime and effort necessary to provideeffective representation.” In addi-tion, the statute states that suchcontracts must require contractingattorneys to adhere to minimumstandards set forth by ABA and theNebraska Canons of Ethics forAttorneys.

Caseload Standards for Private Attorneys

At least two states’ standards rec-ognize that private attorneys whoaccept court appointments are sus-ceptible to excessive caseloads,particularly when compensation in

CASELOAD STANDARDS


court-appointed cases is inadequate.In Indiana, where many of the state’s92 counties use some sort of court-appointment system, state standardsregarding appointment of privatecounsel in capital cases address thispotential problem.

In the late 1980s, the IndianaCommission on Public Defense draft-ed standards regarding representa-tion in death penalty cases. Thestandards were ultimately adoptedby the Indiana Supreme Court inIndiana Criminal Rule 24 and wentinto effect in January 1990. UnderRule 24, for the first time in the his-tory of indigent defense in Indiana,state funds became available forcounties that complied with therequirements of the rule in providingrepresentation to indigent defendantscharged with crimes where the stateasked that the death penalty beimposed. Rule 24 includes qualifica-tion standards for both lead counseland co-counsel, maximum caseloadstandards (outside of the capitalcase) for counsel, requirements forsufficient support staff, and compen-sation, as of January 1, 2001, of$90 per hour.19 Any county that isable to meet these standards is reim-bursed by the state for one-half thecost of representation.

Rule 24(B)(3) of the Indiana Rulesof Criminal Procedure specificallyaddresses “Workload of AppointedCounsel” in capital cases, stating:

(a) Attorneys accepting appoint-ments pursuant to this rule shallprovide each client with quality

representation in accordancewith constitutional and profes-sional standards. Appointedcounsel shall not accept work-loads which, by reason of theirexcessive size, interfere with therendering of quality representa-tion or lead to the breach of pro-fessional obligations.

(b) A judge shall not make anappointment of counsel in acapital case without assessingthe impact of the appointmenton the attorney’s workload.

Additionally, Rule 24(J)(2) focuseson the workload of appointed appel-late counsel:

In the appointment of appellatecounsel, the judge shall assessthe nature and volume of theworkload of appointed appellatecounsel to assure that counselcan direct sufficient attention tothe appeal of the capital case. Inthe event the appointed appel-late counsel is under contract toperform other defense or appel-late services for the court ofappointment, no new cases forappeal shall be assigned to suchcounsel until the appellant’sbrief in the death penalty caseis filed.

Performance StandardsPerformance standards are another

important tool for attorneys facing awork-overload crisis. When a juris-diction adopts performance stan-dards for attorneys who represent


16

indigent defendants, defense attor-neys can use the standards to ex-plain to the court—through informaldiscussions with judges or, if neces-sary, litigation—that appointment to additional cases will make it impossible to properly representtheir current clients. Performancestandards describe minimumrequirements for competent repre-sentation by public defenders andprivate court-appointed counsel.Such standards, which are in placein several states, are designed to

ensure that, among other things,attorneys maintain contact with theclient, conduct a factual investiga-tion, examine the complaint for legalsufficiency, file appropriate motions,and conduct discovery.20 NLADA’sPerformance Guidelines for CriminalDefense Representation (1995) is anexcellent resource for defense coun-sel and a good starting point for ajurisdiction seeking to tailor perfor-mance guidelines to local practiceand procedure.

IV. Withdrawal From Cases

What should an attorney do whenfacing a caseload that she believeswill jeopardize her ability to provideeffective representation? A requestby an attorney to a court to with-draw from assigned cases and/ortemporarily refrain from taking newcases typically comes as a lastresort, after the attorney has en-dured a mounting case-overload sit-uation. Often, in the case of a publicdefender office, the chief publicdefender will have made unsuccess-ful attempts to secure supplementalfunds needed to hire additional attor-neys who can absorb the overload.The situation typically screams “Cri-sis!” in the indigent defense system.A successful motion to temporarilycut off appointments to an individualattorney or to a public defenderoffice can trigger ripple effectsthrough the entire local criminal jus-tice system.

In November 1991, the KnoxCounty public defender in Ten-nessee moved the four general ses-sion court judges to suspend furthercase appointments to the publicdefender office. Excessive case-loads, as high as five times thenational standards, formed the basisfor the motion. The public defenderargued that continued appointmentswould create a conflict of interestbetween present and future clients.To temporarily relieve the situation,the general session judges grantedan order that halted all further

appointments of cases to the publicdefender for 60 days. A similarmotion filed in criminal court result-ed in suspension of misdemeanorappointments to the public defenderoffice so that the attorneys couldwork down their caseloads to moremanageable levels.

In such a situation, cases normal-ly assigned to the public defenderwould typically be assigned to theprivate criminal defense bar, whowould take additional case appoint-ments until the public defender’scaseload reached a manageablelevel. At the time, other factorswere at play that affected indigentdefense statewide, not just in KnoxCounty. One primary factor was thatTennessee’s Indigent Defense Fundwas running out of money, just 4months into the fiscal year. The fundis used to pay for the operation ofpublic defender offices, compensateattorneys in court-appointed cases,and pay for associated expert feesin those cases.

To make up this shortfall, thestate proposed to reduce the rate ofreimbursement for court-appointedcases to 25 percent of the totalclaim. Rather than the $20 hourlyrate for out-of-court work and $30hourly rate for in-court representa-tion, attorneys’ fees would bereduced to $5 and $7.50 an hour.This proposal was unacceptableto appointed attorneys, who had



18

complained about the inadequacy ofthe $20/$30 rates that had been inplace since 1965. The proposal wasnot implemented.

For attorneys practicing in KnoxCounty, news about the reduced feescame in the wake of a new plan,announced by the General SessionsCourt, to distribute cases to privatecounsel during the temporary sus-pension of case appointments to thepublic defender. The court issuednotice to every bar member in thecounty advising them that theywould be expected to accept anappointment to a criminal case.The mandate applied to all lawyers,regardless of whether they were cur-rently practicing or familiar withcriminal defense.

At about the time the temporaryfreeze on new appointments to theKnox County public defender officewas set to expire, the IndigentDefense Fund was almost entirelydepleted. The Shelby County (Memphis) public defender officeannounced that it would stop takingnew appointments and begin layoffsbecause of the state’s inability toprovide funding to the office. Whenthe Shelby County public defendersought an order for continued fund-ing for his office in federal court, thejudge indicated that he did not havethe authority to order the state toprovide funding. However, he notedthat he did have the authority to pre-vent the state from contributingdirectly to unconstitutional condi-tions in the local jail, which wasunder a consent decree that included

a maximum population cap. If thepublic defender stopped acceptingcases, it would trigger a backlog inthe criminal justice system, includingthe jail.

The crisis in Tennessee was finallyremedied by moving funds fromother program areas to keep theShelby County public defender officeoperating, and court-appointedlawyers were paid the full $20/$30rate.21 The 60-day halt in appoint-ments to the Knox County publicdefender office gave the office thebreathing room it needed to makeit through the fiscal year.

In the next legislative session, theTennessee legislature appropriatedfunds to increase public defenderstaff at offices throughout the state.The Knox County public defenderoffice almost doubled in size. Asyears passed, it became clear thatadditional staff were needed. Thelegislature requested that the statecomptroller oversee case-weightingstudies for judges, prosecutors, andpublic defenders to determine thelevel of staff needed.

In 1999, The Spangenberg Groupconducted a weighted-caseloadstudy for public defenders in Ten-nessee that found an additional 59attorneys were needed statewide.Weighted-caseload studies were con-ducted for judges and prosecutors atthe same time by the National Cen-ter for State Courts and the Ameri-can Prosecutors Research Institute.It is expected that any state-fundedincreases in the numbers of judges,

BUREAU OF JUSTICE ASSISTANCE

Withdrawal From Cases

prosecutors, or public defenders willbe made according to the recom-mendations in these studies. How-ever, because of fiscal restrictions,Tennessee has not yet funded addi-tional public defenders, prosecutors,or judges.

These funding limitations prompt-ed Knox County Public DefenderMark Stephens to work with countyofficials to avoid a repeat of 1991.State law now gives localities theoption to adopt an ordinance requir-ing that 75 cents be appropriated forthe local public defender’s officefor every dollar of county moneyappropriated for the local districtattorney’s office. Knox Countyadopted such an ordinance. Further-more, state law allows revenue froma local litigation tax assessed oncriminal defendants convicted ingeneral sessions court to fund indi-gent defense in Knox County. Theselocal measures currently fundalmost one-third (7 of 22) of theattorneys in the Knox County publicdefender office.

In the early 1990s, Dade County,Florida, was in a crisis similar tothat faced by Knox County. In Octo-ber 1992, the Dade County publicdefender office, arguing that crush-ing caseloads had rendered itslawyers unable to represent criminaldefendants competently, filed peti-tions with four juvenile court judgesto withdraw from 500 juvenile casesand to request that further juvenilecase appointments be suspended.Dade County Public Defender

Bennett Brummer called the situa-tion “a reflection of a failure of state government. I have a constitutionaland ethical responsibility to provideeffective legal representation. I’vebeen very reluctant to withdrawfrom cases. But it gets to the pointwhere you can’t justify being a self-respecting professional and pretendyou’re providing legal representationunder those circumstances.”22

At the time of the public defend-er’s request to withdraw, Florida,like many states, was experiencingrevenue shortfalls. Brummer hadrequested an increase in fundingfrom the state legislature to hireadditional lawyers but ended up witha budget smaller than that appropri-ated for his office the previous year.Meanwhile, caseloads were on therise. Individual defenders had anaverage of 98 open juvenile cases,and the office was assigned toroughly 100 additional cases eachweek. At that rate, attorneys wereon their way to handling 400 juve-nile cases apiece in 1992, doubleNAC standards.

Although workloads were up forattorneys handling all types ofcases, Brummer reportedly with-drew from juvenile cases becausethey are cheaper than adult casesfor court-appointed counsel to han-dle and because the overload situa-tion was especially severe in theoffice’s juvenile division. Brummerwas granted leave to withdraw, butthat amounted to a temporaryreprieve. It would not prevent arepeat occurrence.

19


20

In Florida, 20 elected public de-fenders provide representation toindigent defendants at the trial levelthroughout the state’s judicial cir-cuits. Appellate cases are handledon a regional basis by 5 of the 20offices. All funds for these programsare provided by the state, but thecounties are responsible for repre-senting indigent defendants in pro-ceedings in which the state publicdefender withdraws because of aconflict of interest and where anexcessive workload precludes ade-quate state public defender repre-sentation. The Dade County publicdefender’s request to withdraw fromcases in 1992 was not an isolatedincident. Because of their profession-al standards, 6 of Florida’s 20 elect-ed public defenders have found itnecessary to withdraw from cases orto seek county funds to supplementtheir inadequate state budgets.23

Because state funds have not filledthe needs for additional public de-fender staff, public defenders havesought local assistance. After Brum-mer withdrew from cases in 1992, thecounty provided an influx of specialassistant public defenders, which itcontinues to do. In FY 2000, thecounty funded 82 of the 183 attor-neys in Dade County’s public defend-er office.24 These so-called specialassistant public defenders work asstaff in the public defender office andhandle cases that otherwise would beassigned to appointed counsel be-cause of excessive workload. Theaverage cost per case to the countyfor cases handled by special assistant

public defenders is much lower thanthe average cost per case for court-appointed attorneys.25

In 2004, the state will assume theresponsibility of funding conflict andoverload counsel. Five public de-fender offices currently receivecounty funds to hire special assistantpublic defenders to handle whatwould be overload cases. For thesefive offices, including the DadeCounty public defender, the top leg-islative priority is to obtain adequatestate funds for the positions beforetransfer of financial responsibility foroverload cases to the state.

Public defenders in Georgia havealso been forced to take action inregard to overwhelming caseloads.In 1990, after 4 years as a publicdefender in Fulton County (Atlanta),Georgia, Lynne Borsuk becameuncomfortable with her expandingcaseload and its effect on herclients.26 After consulting with theGeorgia Association of CriminalDefense Lawyers, Borsuk appearedin court and requested that the judgenot appoint her to any more cases.She filed a motion stating her case-load was so overwhelming that itviolated her clients’ right to effectivecounsel and the canon of ethics ofthe State Bar of Georgia. Borsukexplained her action to a reporter:“I recognized I was no longer doingmy clients a service by keepingquiet. It was a sham. We were pre-tending that we were providing ade-quate representation. We weren’t.”27



Borsuk’s stand led to the forma-tion of the Atlanta Bar AssociationBlue Ribbon Commission to studythe problem of case overload in theFulton County public defenderoffice. After reviewing the bar’s find-ings, the Fulton County Commissionappropriated additional funds to thepublic defender office.28 Borsuk,however, paid a price for her initia-tive. She was demoted from han-dling felony cases to juvenile courtand resigned shortly thereafter.

Borsuk’s experience raises animportant issue: Whose responsibili-ty is it to have an attorney withdrawfrom a case—the individual defenderor the chief public defender? If anassistant defender is not gettingworkload relief and works for a chiefpublic defender who does not wantto create friction in the local crimi-nal justice system, there are fewappealing options. She can resignand leave colleagues with an evengreater workload. She can go overthe boss’s head to the court and askto withdraw. Or she can attempt tobuild a coalition of bar, defender,and other criminal justice systemplayers to look at the issue, whichcould take weeks or longer toorchestrate. Because these alterna-tives may not be palatable or feasi-ble for a young defender, the chiefdefender should monitor the work-load and take steps to ease it whenit becomes excessive.

Of course, individual defendersshould not stand idly by when aworkload situation becomes unten-able. Recall the example of Rick

Tessier, the young defender in NewOrleans who filed a motion for reliefwhen he felt he could no longer pro-vide constitutionally required stan-dards of representation for hisclients. The Louisiana SupremeCourt upheld the promise it made inState v. Peart to take action if nonewas forthcoming from the legisla-ture. In 1994, after its landmarkdecision in Peart and a statewidestudy of Louisiana’s indigent de-fense system conducted by TheSpangenberg Group, the LouisianaSupreme Court promulgated a rulecreating the Louisiana Indigent De-fense Assistance Board (LIDAB)(formerly called the Louisiana Indi-gent Defender Board). LIDAB wasgiven $7.5 million in state funds andcharged to supplement the budgetsof local indigent defender boards,defray the costs of court-ordereddefense experts and tests through-out the local boards, and more ade-quately fund counsel representingindigent defendants charged withcapital crimes.

In December 1997, the governorand legislature assumed responsi-bility for LIDAB to avoid conflicts ofinterest arising from the judiciary’sstewardship of the program. In the1999 legislative session, LIDABacquired the additional responsi-bility of ensuring that counsel isappointed in state postconvictiondeath penalty cases.

Systemic LitigationSometimes defenders’ excessive

workloads become so intractable in a


22

jurisdiction that seeking relief throughtraditional channels—promulgatingperformance standards, document-ing case overload and presenting theevidence to criminal justice systemofficials, seeking supplemental appro-priations, requesting to withdraw fromcases, and seeking to temporarily de-cline additional appointments—failsto make progress. At this point, bring-ing a lawsuit charging systemic defi-ciencies may be the only alternative.

In the 1990s, attorneys in Connecti-cut’s statewide, state-funded publicdefender system were chronicallyoverworked, carrying caseloads farin excess of NAC standards. In 1993and 1994, Connecticut public defend-ers each handled an average of1,045 cases in “geographic area”courts, where misdemeanors andlesser felonies are tried. The averagecaseload for an attorney represent-ing juveniles was 716 cases a year.29

The situation was corrected throughsettlement of a class action lawsuit,Rivera v. Rowland, alleging viola-tions of the 6th and 14th Amend-ments to the Constitution, violationsof the Connecticut constitution andvarious state statutes, and failure toprovide the state public defendersystem with adequate funding.30 Thelawsuit was filed by the AmericanCivil Liberties Union against theGovernor of Connecticut, the state’spublic defender services commis-sioners, and others.

Such a lawsuit can produce goodresults but it can take years to re-solve, leaving indigent defendants inthe hands of overburdened public

defenders. Rivera v. Rowland, forexample, spent 5 years in the courtsystem.

Malpractice Claims in StateCourt and Federal Immunity

Attorneys with excessive case-loads are under an ethical obligationto remedy the situation. Failure to doso may result in disciplinary actionunder professional codes of conduct.Additionally, attorneys may be heldliable for legal malpractice. A legalmalpractice suit requires proof offour elements: (1) existence of anattorney-client relationship, (2) theattorney’s duty to act according toparticular standards of care, (3) fail-ure to meet that standard, and (4)damage to the client as a result ofthat failure.31

In a recent Illinois case, Johnson v.Halloran, a former client who wasconvicted of aggravated criminalsexual assault sued his public de-fender for malpractice. The publicdefender sought to dismiss the plain-tiff’s claims on the basis of sovereignduty, arguing that as state employ-ees, public defenders are immunefrom malpractice claims. The IllinoisAppellate Court disagreed, findingthat a public defender’s duties andobligations, by virtue of his or herstatus as a licensed attorney, are thesame as those of any other lawyer.That status, the court found, is independent of the lawyer’s stateemployment.32

Although the public defender inJohnson v. Halloran did not claimexcessive caseload as a defense, the



negligence led to a denial of thedefendants’ Sixth Amendment rightto effective counsel.34 The courtrejected this argument, finding that apublic defender does not act undercolor of state law for purposes ofclaims under section 1983.35 Thecourt stressed that the professionalrelationship and obligation of a pub-lic defender are the same as those ofany private attorney and his clientand that the form of payment tocounsel does not constitute stateaction. However, some states grantimmunity to public defenders bystatute.

holding, along with others before it,should encourage public defendersand other attorneys representingindigent defendants to more aggres-sively request relief from furtherassignments when they face exces-sive caseloads.

Public defenders enjoy limitedimmunity from actions broughtunder section 1983 of the CivilRights Act.33 In Polk County v.Dodson, the plaintiffs, who werecriminal defendants in the underly-ing action, claimed that a section1983 action would be proper whentheir court-appointed counsel’s

V. Strategies for Keeping Workloads Manageable

Of all the approaches publicdefenders, contract defenders, andprivate attorneys who handle court-appointed cases have taken to keeptheir workloads reasonable, none isa foolproof approach to this persis-tent problem. And, it is important tonote that a defender program can-not provide quality representationsolely by developing a numerical setof caseload standards. Caseloadstandards are only one componentof an effective indigent defense sys-tem. Public defender offices andindividual attorneys providing repre-sentation must also have fair andadequate compensation; adequatesupport staff such as investigators,social workers, paralegals, and sec-retaries; a complete law library;opportunities for continuing legaleducation; sufficient funds for ex-perts and other costs of litigation;and specialty units for unique casessuch as death penalty and juveniletransfer cases or for clients withmental health problems.

However, leaders of a local crimi-nal defense bar, particularly chiefdefenders, can pursue the followingcommon strategies to prevent case-loads from reaching overwhelminglevels:

• Develop working relationships withlocal criminal justice system play-ers such as judges, prosecutors,

funders, and pretrial service pro-grams. Hold regular meetings todiscuss common issues and worktogether on common projects suchas task forces or committees.

• Maintain a constant dialogueamong judges, public defenders,and prosecutors about the needfor balanced funding and re-sources. Get to know leaders ofthe private bar and the criminaldefense bar. Establish ties withlocal schools, churches, andcommunity groups that providepertinent services such as healthcare, employment training, andcounseling. Potential supportersof the public defender mustunderstand the complexities ofproviding effective indigentdefense representation and thevital need to uphold this constitu-tional right.

• Develop a case definition thatyour office uses uniformly. Dis-cuss the possible development ofa uniform case definition to beused by all criminal justice sys-tem participants in the jurisdic-tion. In the event that caseloadsgrow beyond capacity, this uni-form definition can be used toconduct an “apples to apples”comparison with other compo-nents of the justice system.


26


• Develop a user-friendly systemfor recording case statistics andproducing regular reports on indi-vidual attorney workload, overalloffice workload, and fluctuationsin the mix of types of casesassigned to the office. Use thesereports for funding requests andfor internal supervision. Make useof information systems that sim-plify case tracking and report pro-duction, and make sure staff aretrained to use the systems.

• Create caseload standards for the office, and share them withfunders, judges, and other players in the system. Caseloadstandards can be developed in

various ways, ranging from acase-weighting study to adoptionof NAC standards.

• Develop a way to enforce or en-courage compliance with work-load standards, as Indiana hasdone.

• Document your office’s excessivecaseloads and inadequate staffand resources. Begin by trying todiscuss and resolve the probleminformally with judges and fund-ers. Make it clear that you want toavoid having to withdraw fromcases but that you will do so if noother solutions can be found.


VI. Notes

1. State v. Peart, 621 So. 2d 780, 791(La. 1993).

2. Ibid.

3. State Court Model Statistical Dictio-nary, 1989: 19 (definition used by TheSpangenberg Group in its weighted-caseload studies).

4. Model Rule 1.1 states a “lawyershall provide competent representationto a client.”

5. 681 P. 2d 1374 (Arizona 1984).

6. Monahan, Edward C., and Clark,James, 1995, “Coping With ExcessiveWorkload,” Ethical Problems Facing theCriminal Defense Lawyer: PracticalAnswers to Tough Questions, Chicago,IL: American Bar Association, 331.

7. There are no nationally recognizedcaseload standards for prosecutors.Research is under way by the Ameri-can Prosecutors Research Institute todetermine whether such a set of stan-dards can be produced. The project is funded through a grant from theBureau of Justice Assistance andshould be finalized in 2001.

8. National Advisory Commission onCriminal Justice Standards and Goals,Task Force on Courts, 1973, Courts.Washington, DC: National AdvisoryCommission, 186.

9. American Bar Association Stan-dards for Criminal Justice, ProvidingDefense Services, 3rd ed. Chicago, IL:

American Bar Association: Washing-ton, DC, 1992: 72.

10. The Spangenberg Group has con-ducted statewide weighted-caseloadstudies for public defender programs inColorado, Minnesota, Tennessee, andWisconsin. Another weighted-caseloadstudy was conducted for the New YorkLegal Aid Society Criminal DefenseDivision in New York City.

11. Colorado’s felony and misde-meanor caseload standards establishthresholds based on the severity of thecharge and whether defenders are inurban or rural offices. Colorado’s juve-nile delinquency caseload standardsestablish thresholds on the basis ofwhether defenders are in urban or ruraloffices.

12. Among the most important vari-ables to consider in state-by-state indi-gent defense comparisons are thefollowing: whether the system is fund-ed entirely with state funds, entirelywith county funds, or a mixture ofboth; whether the system is organizedat the county, regional, or state level;whether the state has the death penal-ty; whether the system has a central-ized organization responsible forstatewide data collection, oversight,and/or policymaking; the types andpercentages of cases handled by vari-ous providers in the state; the rate ofpay for court-appointed counsel in thestate; the state population; and theway in which programs define, and

28

therefore count, cases (different pro-grams define cases by charge, indict-ment, defendant, assignment, anddisposition).

13. Indiana’s 92 counties have the pri-mary responsibility for funding theindigent defense programs within theirjurisdictions. Each county may choosebetween a county public defender, acontract defender program, or anassigned counsel system. The IndianaPublic Defender Commission (IPDC)allocates state funds to offset countyindigent defense expenditures in coun-ties that comply with IPDC’s standardsfor indigent defense services in capitaland noncapital cases. Counties thatenforce these standards are reim-bursed by IPDC for 40 percent of thecost of representing indigent defen-dants in noncapital felony cases, 50percent of the cost of attorneys’ fees,and expert, investigative, and supportservices in capital cases. Currently, 42of Indiana’s 92 counties, includingMarion County (Indianapolis), thestate’s largest county, are in compli-ance with IPDC standards and receivefunds from the commission.

14. In some states, a commission onindigent defense sets policy to ensureuniformity of practice statewide, and astate public defender implements thepolicy. In other states, either a com-mission but no state public defender or no commission but a state publicdefender develops and implementspolicy.

15. New Hampshire Revised StatuteAnn. § 604–B:6 (1999).

16. Washington Revised Code Ann. § 10.101.030 (1999).

17. Wisconsin Statute Ann. § 977.08(5)(bn) (1999).

18. 681 P. 2d 1374 (Arizona 1984).

19. Until January 1, 2001, compensa-tion for court-appointed counsel underRule 24 was set at $70 per hour.

20. Two of the best state examples arethe Massachusetts Committee for Pub-lic Counsel Services’ Manual for Coun-sel Assigned Through the Committeefor Public Counsel Services: Policiesand Procedures (June 1995) and theLouisiana Indigent Defense Board’sLouisiana Standards on IndigentDefense, Chapter 6 (1995). Perfor-mance standards can also be found forindigent defense systems in California,Colorado, Florida, Georgia, Indiana,Massachusetts, Michigan, Missouri,Nebraska, New Mexico, New York City,New York, North Dakota, Oregon, andWashington.

21. The state gave the public defender$700,000 from its award from the federal Drug Control and SystemImprovement Formula Grant program.

22. Viglucci, Andres, The Miami Her-ald, October 25, 1992, p. 1B.

23. Brummer, Bennet H., 10–3 St.Thomas Law Review/ 607, 616 See, e.g., In re A.S., no. 92–1607FJ13(Fla. Cir. Ct. filed October 16, 1992),In re Certification of Conflict in MotionsTo Withdraw filed by public defender of10th Judicial Circuit, 636 So. 2d 19


BUREAU OF JUSTICE ASSISTANCE

(Fla. 1994), and In re Order on Prose-cution of Crim. App. by the 10th Judi-cial Circuit Public Defender, 561 So.2d 1130 (Fla. 1990).

24. While housed at the public defend-er office and trained and supervised bythe public defender, the county-fundedspecial assistant public defenders donot receive the same fringe benefitsreceived by state-employed assistantpublic defenders.

25. In 1995, the estimated average feefor a noncapital case handled by acourt-appointed attorney in DadeCounty was $1,400 and for juvenileand misdemeanor cases was $500.The average cost/per/case handled byspecial assistant public defenders wasestimated between $50 and $100.

26. Shumate, Richard, 1991–92, I WillNot Accept Any More Cases, Barrister11 (Winter).

27. See note 26.

28. The county appropriated an addi-tional $470,000 in 1991 and made fur-ther steady increases to the publicdefender office in the following years.

29. Touchy, Lynne, “CCLU Files SuitAgainst State,” Hartford Courant,January 6, 1995.

30. Rivera v. Rowland, Superior Court, Judicial District of

Hartford-New Britain, CT (1999) (No.CV95–545629).

31. Klein, Richard, 1988, “Legal Mal-practice, Professional Discipline, andRepresentation of the Indigent Defen-dant,” Temple Law Review 61. (4)1191, n. 121.

32. Johnson v. Halloran, 2000 WL21047 (Ill. App. 1 Dist.) (No.1–98–2365).

33. 42 U.S.C. § 1983 (1982) states:“Every person who, under color of anystatute, ordinance, regulation, customor usage, or any state or territory, sub-jects, or causes to be subjected, anycitizen of the United States or otherperson within the jurisdiction thereofto the deprivation of any rights, privi-leges, or immunities secured by theConstitution and laws, shall be liableto the party injured in an action at law,suit in equity, or other proper proceed-ing for redress.”

34. 454 U.S. 312 (1981).

35. However, in Tower v. Glower, 467U.S. 914 (1984), the Court clarifiedthere is no immunity from liabilityunder section 1983 for public defend-ers who allegedly conspire with otherstate officials to deprive a formerdefendant of his/her constitutionalrights. See Klein, supra note 31 at1197.

29

Notes

VII. For More Information

To receive more information aboutindigent defense contract systems,contact the following organizations:

The Spangenberg Group 1001 Water Town StreetWest Newton, MA 02465617–969–3820Fax: 617–965–3966E-mail: [email protected] Wide Web:www.spangenberggroup.com

For additional information on BJAgrants and programs, contact:

Bureau of Justice Assistance 810 Seventh Street NW.,Fourth Floor

Washington, DC 20531202–514–6278Fax: 202–305–1367World Wide Web: www.ojp.usdoj.gov/BJA

Bureau of Justice Assistance Clearinghouse

P.O. Box 6000Rockville, MD 20849–60001–800–688–4252World Wide Web: www.ncjrs.org


Clearinghouse staff are availableMonday through Friday, 8:30 a.m.to 7 p.m. eastern time. Ask to beplaced on the BJA mailing list.

U.S. Department of Justice Response Center

1–800–421–6770 or 202–307–1480

Response Center staff are avail-able Monday through Friday, 9 a.m.to 5 p.m. eastern time.

To learn more about indigentdefense workloads discussed in this report, contact the followingorganizations:

American Bar AssociationCriminal Justice Section

1800 M Street NW.Washington, DC 20036202–331–2260World Wide Web: www.abanet.org

National Legal Aid & DefenderAssociation

1625 K Street NW., Suite 800Washington, DC 20006–1604202–452–0620World Wide Web: www.nlada.org

Bureau of Justice AssistanceInformation

General Information

❒ MailP.O. Box 6000 Rockville, MD 20849–6000

❒ Visit2277 Research Boulevard Rockville, MD 20850

❒ Telephone 1–800–688–4252 Monday through Friday 8:30 a.m. to 7 p.m. eastern time

❒ Fax301–519–5212

❒ Fax on Demand1–800–688–4252

Callers may contact the U.S. Department of Justice Response Center for general informa-tion or specific needs, such as assistance in submitting grant applications and informationon training. To contact the Response Center, call 1–800–421–6770 or write to 1100Vermont Avenue NW., Washington, DC 20005.

Indepth Information

For more indepth information about BJA, its programs, and its funding opportunities,requesters can call the BJA Clearinghouse. The BJA Clearinghouse, a component of theNational Criminal Justice Reference Service (NCJRS), shares BJA program informationwith state and local agencies and community groups across the country. Information spe-cialists are available to provide reference and referral services, publication distribution,participation and support for conferences, and other networking and outreach activities.The Clearinghouse can be reached by

❒ BJA Home Pagewww.ojp.usdoj.gov/BJA

❒ NCJRS World Wide Web www.ncjrs.org

❒ [email protected]

❒ JUSTINFO NewsletterE-mail to [email protected] the subject line blankIn the body of the message,type:subscribe justinfo[your name]

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EEPING DEFENDER ORKLOADS MANAGEABLE - National Criminal … · “employ the more intrusive and...

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