Attorney–Client Communication in Public Defense: A Qualitative Examination

• Author: Lori A. Foote,Vicki L. Plano Clark,Jacinda K. Dariotis,Janet Moore
• DOI: 10.1177/0887403419861672
• Published date: 01 July 2020
• Date: 01 July 2020
• Subject Matter: Articles

https://doi.org/10.1177/0887403419861672

Criminal Justice Policy Review

2020, Vol. 31(6) 908 –938

© The Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0887403419861672

journals.sagepub.com/home/cjp

Article

Attorney–Client

Communication in Public

Defense: A Qualitative

Examination

Janet Moore1, Vicki L. Plano Clark1,

Lori A. Foote1, and Jacinda K. Dariotis1

Abstract

This article presents a qualitative research approach to exploring attorney–client

communication in an urban public defense system. The study drew upon procedural

justice theory (PJT), which emphasizes relationships between satisfaction with system

procedures and compliance with system demands. Interpretive analysis of interview

data from 22 public defense clients revealed four major themes. PJT accounted well

for three themes of communication time, type, and content, highlighting relationships

between prompt, iterative, complete communication, and client satisfaction. The

fourth theme involved clients exercising agency, often due to dissatisfaction with

attorney communication. This theme was better accommodated by legal consciousness

theory, which emphasizes that diverse experiences with law include manipulation and

opposition alongside compliance. Implications for policy and research are discussed.

Keywords

public defense, communication, client perspectives, qualitative research, procedural

justice theory, legal consciousness theory

Attorney–client communication is a major concern for public defenders and clients

alike, but there is a dearth of research focused specifically on this topic (Moore,

Yaroshefsky, & Davies, 2018). This knowledge gap is problematic. Attorney–client

communication is a critical component of legal representation (American Bar

Association [ABA], 2004; Missouri v. Frye, 2012). A turn toward client-centered and

1University of Cincinnati, OH, USA

Corresponding Author:

Janet Moore, College of Law, University of Cincinnati, Cincinnati, OH 45221-0040, USA.

Email: moore2jt@ucmail.uc.edu

861672CJPXXX10.1177/0887403419861672Criminal Justice Policy ReviewMoore et al.

research-article2019

Moore et al. 909

holistic practices has encouraged attorneys to involve clients more actively in their

representation and to attend more fully to client needs (Anderson, Buenaventura, &

Heaton, 2019; Brooks & Madden, 2010). These developments have increased the

importance of understanding communication as an aspect of attorney education, per-

formance evaluation, and workload-resource policies (Barton, Cunningham, Jones, &

Maharg, 2006; Carmichael, Clemens, Caspers, Marchbanks, & Wood, 2015; Cochran,

DiPippa, & Peters, 2014; Felstiner, 1997).

Moreover, a distinctive set of problems undermines attorney–client communication

in public defense. Government-paid attorneys have long been seen as lacking the

resources, commitment, and independence of privately retained counsel (Campbell,

Moore, Maier, & Gaffney, 2015; Casper, 1971). This stereotype is not baseless; public

defense is minimally regulated and often underfunded (National Right to Counsel

Committee, The Constitution Project, 2009). Institutional and workload pressures

encourage public defenders to triage cases and obtain quick guilty pleas with little cli-

ent communication, heightening risks that extralegal factors such as race will influ-

ence representation (Cunningham, 1992; Richardson & Goff, 2013; Troccoli, 2002).

Courts exacerbate mistrust by appointing public defense counsel instead of granting

the limited right to choose counsel enjoyed by people who hire lawyers (Moore, 2018).

These problems leave public defenders “shorn of their sharpest edge—their legitimacy

as effective and trusted lawyers,” which “impairs the lines of communication essential

to a proper defense” (Aalberts, Boyt, & Seidman, 2002, p. 544).

Despite reform efforts, these problems are recalcitrant and embedded within other

crises involving poverty, austerity in social service funding, and overincarceration

(Blumberg, 1967; Gonzalez Van Cleve, 2016; Gottschalk, 2015). Thus, they share

characteristics of “wicked problems” in public health and environmental science for

which transdisciplinary research seeks new theoretical frameworks and concrete

solutions (Brown, Harris, & Russell, 2010; Lang et al., 2012). Furthermore, public

defense research needs exploratory studies to refine conceptual definitions, promote

theory development, and improve related tools and measures (Moore & Davies,

2017).

Our research team responded by combining expertise in research methodologies,

education, public health, and criminal law and procedure to conduct exploratory

research on attorney–client communication in public defense. Our research purpose

was to increase understanding of client experiences and perceptions regarding com-

munication with their public defense lawyers. We adopted an interpretive qualitative

approach (Braun & Clarke, 2006). Data from 22 public defense clients revealed new

complexities in client experiences with attorney–client communication that include

the exercise of personal agency, often due to dissatisfaction with the communication.

Legal consciousness theory (LCT; Silbey, 2005) complemented procedural justice

theory (PJT; Campbell et al., 2015) in accounting for these complexities. The results

of this study have implications for research, theory, policy, and practice related to

public defense, and call for increased attention to the potential role of client agency in

efforts to improve attorney training, performance evaluation, workload-resource

ratios, and outcomes at the case and system level.