Ethical obligations of indigent defense attorneys to their clients.

• Author: Mann, Phyllis E.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

1. INTRODUCTION

   This Article is a basic introduction to the provision of indigent defense services in state courts throughout the country and the ethical obligations of the attorneys who provide those services. First, the Article briefly quantifies what currently exists in our right to counsel systems--what we know, and what we do not know. (1) The Article then discusses the rules that generally govern the ethics of representation provided by indigent defense attorneys. Third, the Article examines the measures by which attorneys can know whether they are fulfilling and will continue to fulfill their ethical obligations. Finally, the Article discusses the responsibilities of the broader justice system to ensure ethical representation of indigent defendants and why that goal is rarely achieved.

2. WHAT DO WE MEAN WHEN WE SAY "INDIGENT DEFENSE?"

   Before discussing the ethical obligations of lawyers who provide indigent defense representation, it is necessary to first define the term "indigent defense." Each public defense professional works primarily within a single jurisdiction, and so tends to apply a definition of indigent defense that reflects the makeup of that jurisdiction's system. Often, public defense professionals mistakenly believe that others assign the same definition to these words. Because of the variations in indigent defense systems and services throughout the country, and from jurisdiction to adjacent jurisdiction, it is highly unlikely that each public defense professional applies the same definition of indigent defense as that applied by every, or any, other professional.

   There is no single indigent defense system in our country; the very use of the word system is a misnomer. Instead, each jurisdiction applies its own unique combination of answers to: the administration, funding, and service delivery model by which they provide representation; the individuals who receive that representation; the types of cases in which representation is provided; and, the celerity with which counsel is appointed.

   1. How Indigent Defense Representation Is Provided

      This Article focuses solely on indigent defense representation provided in state courts and does not address the federal public defense and Criminal Justice Act (CJA) panel system. (2) In the forty-seven years since the Gideon v. Wainwright decision, (3) the federal government and courts have been largely hands-off about the manner in which the states attempt to carry out the sixth Amendment mandates of the Constitution. (4)

      1. Administration and Funding

         The administration of public defense services varies by jurisdiction and may be carried out by a state, a county, a city, an individual judge, or by every possible combination of these. (5) Eighteen states have statewide commissions overseeing statewide public defense systems that are theoretically responsible for all public defense services within each state. (6) Two states have elected public defenders for each county or jurisdiction, who are directly accountable to the voters. (7) Eight states have a state public defender operating the public defense system throughout the state, but the chief executive of the state public defender office is appointed by and serves at the pleasure of the governor without any public defense commission to insulate the provision of counsel to the poor from politics. (8) Eleven states fall into a hybrid category. (9) In the remaining eleven states, the individual counties and/or cities control the administration of trial-level indigent defense services, and there is no state oversight. (10)

         Just as administration of services varies by jurisdiction, so too does the source of funds to provide those services. (11) Twenty-eight states provide 100% of the funding for trial-level indigent defense (or the amount provided by local jurisdictions is negligible). (12) An additional six states provide the majority of the funding for trial-level representation. (13) In nine states, the counties provide the majority of funding, though the state makes some contribution, even if minimal, toward the cost of trial-level indigent defense. (14) And, in seven states, the counties are left to provide the entirety of funding for trial-level representation with no assistance at all from the state. (15)

      2. Service Delivery Model

         Each jurisdiction (whether state, county, city, or individual judge) determines the delivery method by which it provides representation. There are three basic forms of delivery: a public defender office; a contract system; or an assigned counsel/appointment system. (16) Yet such simple titles are deceptive because, regardless of the primary delivery system that a jurisdiction claims to use, few systems conform wholly to the structures that these titles appear to dictate.

         Public Defender Office Model. Many jurisdictions claim to have a public defender office as their model for delivering public representation services. In one jurisdiction, this may be the private law office of a single attorney who has been designated as the public defender, yet that attorney may carry a full private-pay caseload of clients in addition to her public defense work. (17) In another jurisdiction, all of the public defender attorneys may work part-time, or in their own separate private law offices, or maintain private-pay client caseloads, or all of the above. These are public defender offices in name only, and in fact they are much more like a contract system. In contrast, other jurisdictions may have established a true public defender office as a government agency, with staff working together in a single office and paid as full-time government employees.

         Contract Model. Some jurisdictions claim to have contract systems. This may mean that the jurisdiction has an annually renewable contract with a non-profit corporation that employs several full-time attorneys who only represent public defense clients. Such a system looks and behaves much more like a "public defender office" than do many other offices operating under that moniker. Another jurisdiction may have a contract with an attorney for a given sum of money to represent all of the primary conflicts; this arrangement is known as a flat-fee contract.

         Assigned Counsel Model. Assigned counsel systems are structured in myriad ways. Some jurisdictions have a single assigned counsel administrator who selects the attorney to be appointed in each case. In others, the chief public defender has responsibility for administering the appointment rotation. In still others, each judge selects an attorney from a pre-approved list. A jurisdiction may claim to have an assigned counsel system, but, if a single lawyer is paid a fee to handle all of a certain type of case and the lawyer does almost exclusively public defense, a contract system actually results.

         Most jurisdictions employ a combination of these three methods in delivering indigent defense representation. This is because, in both the public defender office model and the contract model, the jurisdiction must provide unconflicted representation in conflict of interest cases. These conflicts arise in three ways. The most common is in cases of multiple co-defendants, each of whom must have his or her own independent attorney. There are also direct conflicts of interest between particular clients and their attorneys (with those conflicts imputed to every attorney working in the same office). The third type of conflict results from case overload, where a public defender office or contract attorney cannot accept the next case because they would then have too many cases to be able to provide effective assistance of counsel. In all of these conflict situations, some secondary method of delivering representation is necessary to overcome the conflict.

      3. Attorneys Providing Indigent Defense Representation

         No one knows the identity of all of the attorneys who provide indigent defense representation in America. On November 19, 2009, the Bureau of Justice Statistics (BJS) released its Public Defender Offices, 2007--Statistical Tables, which examined offices that provide representation "through a salaried staff of full-time or part-time attorneys who are employed as direct government employees or through a public, nonprofit organization." (18) The information in the tables was derived from the Census of Public Defender Offices conducted by BJS. (19) The Census gathered information from 1,015 offices in forty-nine states and the District of Columbia, but it excluded "[o]ffices that provided primarily contract or assigned council [sic] services with private attorneys, were privately-funded or principally funded by tribal or federal government, or provided primarily appellate or juvenile services." (20) Though this is likely the most comprehensive census of public defense service providers ever conducted by the federal government, it falls well short of being complete. The BJS has indicated an intention to augment this census by gathering data on contract attorneys and assigned counsel. (21) Though there is a dearth of data, the relatively small number of public defender offices sprinkled across all the jurisdictions in the country means that the greatest number of indigent clients is being represented by assigned counsel and attorneys appointed case-by-case, rather than by attorneys employed in public defender offices.

   2. Who Is Being Represented?

      No one knows the actual number of clients or cases who receive public defense representation each year. Anecdotally, an estimated 80-90% of all defendants prosecuted in criminal cases throughout the country is represented by publicly funded counsel (or could have been, had they not waived that right). (22)

      1. Types of Cases

         There are several types of cases in which defendants who cannot afford to hire a private attorney are constitutionally entitled to receive appointed counsel. These are: felonies; (23) misdemeanors; (24) suspended/probated sentences; (25)...