Plight of the Public Defender: Excessive Caseload as a Non-Mitigating Factor in Sanctions for Ethical Violations.

• Author: Payne, Taylor

1. INTRODUCTION

   In 1984, the United States Supreme Court stated in United States v. Cronic, "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." (1) Indeed, the right to counsel contained in the Sixth Amendment (2) is an indispensable protection of the "fundamental right to a fair trial." (3) This truth is perhaps most evident when an indigent individual is accused of a crime and faces the loss of life or liberty. In 1963, the landmark decision of Gideon v. Wainwright was handed down wherein the Court for the first time held that indigent criminal defendants facing the possibility of imprisonment must be provided counsel at the government's expense. (4) As the Court declared in the years following Gideon, "[N]o person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he [has the opportunity to be] represented by counsel at his trial." (5) Though states are obligated to provide counsel to indigent state defendants, the Court has made it clear that each state remains free to carry out this obligation as it sees fit. (6) As a result, states have approached public defense in various ways. In some states, the right to counsel is provided on a county-by-county or even town-by-town basis. (7) In others, however, public defense is overseen at the state level. (8) Missouri is a state of the latter sort. (9)

   In addition to the United States Constitution, (10) the right to counsel for indigent defendants in Missouri is commanded by the Missouri Constitution (11) and reiterated in Missouri's Supreme Court Rules. (12) So what exactly does it mean to have a right to counsel? The United States Supreme Court has long held that pro forma appointment of counsel is not sufficient; effective and competent assistance of counsel is required. (13)

   The Missouri Rules of Professional Conduct ("Missouri Rules") require just the same: competent representation. (14) In fact, the very first obligation laid out in the Missouri Rules is the obligation to provide competent representation to a client. (15) Of course, the Missouri Rules require more than just competence. They also require counsel to effectively communicate (16) with clients, be diligent in their representation, (17) and much more. (18)

   The Missouri Rules apply to public defenders just as they do to every other attorney licensed to practice law in the state of Missouri. However, currently in Missouri, public defenders in particular often find themselves incapable of conforming their representation with the Missouri Rules because they have far too many cases, not enough time, and work under a system of state government that cannot or will not provide adequate funding. (19) Like any other attorney who violates the Missouri Rules, public defenders can be sanctioned and even disbarred for failing to uphold their ethical obligations.

   This Note discusses the thought-provoking ruling in In re Karl William Hinkebein (20) and its implications for public defenders in Missouri. Part II of this Note details the facts and holding of the case. Part III of this Note gives a brief history of the Missouri State Public Defender System ("MSPD"), highlighting its current shortcomings and challenges. Part III then discusses the influential ethics opinion issued by the American Bar Association ("ABA") and the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards").

   Part IV of this Note analyzes the decision of the Supreme Court of Missouri to sanction Karl Hinkebein. Part V discusses the effect of Hinkebein on public defenders around the state and the unforgiving circumstances in which many public defenders find themselves. Finally, this Note concludes in Part V with a brief discussion of potential systemic reforms to MSPD.

2. FACTS AND HOLDING

   Karl William Hinkebein ("Hinkebein") is a public defender with MSPD. (21) Hinkebein became licensed to practice law in the state of Missouri in 1993. (22) At the time the instant case was filed, he had worked in the Central Appellate Post-Conviction Relief ("Appellate/PCR") division of MSPD for over twenty years, and his primary work consisted of representing indigent clients who moved, pro se, for post-conviction relief. (23)

   The instant case arose from a complaint filed by Darin Robinson with the Office of Chief Disciplinary Counsel ("OCDC"). (24) Darin Robinson was a client to whom Hinkebein had been assigned as counsel. (25) Robinson's complaint to OCDC charged that Hinkebein failed to uphold his professional conduct obligations. (26) Specifically, Robinson asserted Hinkebein failed to keep him informed about the status of his post-conviction case and failed to file required motions. (27) Through investigation of Robinson's complaint, OCDC discovered Hinkebein failed to uphold his professional conduct obligations with five additional clients to whom Hinkebein had been assigned as counsel. (28) The instant case thus encompassed Hinkebein's professional conduct violations relating to six different indigent defendants, including Robinson. (29)

   On March 31, 2016, OCDC filed an information charging Hinkebein with violating Missouri Rules 4-1.3 (diligence) and 4-1.4 (communication). (30) Rule 4-1.3 mandates that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." (31) Rule 4-1.4 dictates that

   (a) A lawyer shall:

   (1) keep the client reasonably informed about the status of the matter;

   (2) promptly comply with reasonable requests for information; and

   (3) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.

   (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (32)

   Hinkebein entered his appearance as Robinson's counsel on February 14, 2011. (33) Hinkebein filed a motion for an extension of time to file an amended Rule 29.15 motion (34) and was granted the extension of time to March 13, 2011. Hinkebein did not write to the prison in which Robinson was incarcerated to arrange telephone calls with Robinson until March 10, March 11, and March 14, 2011 -- the earliest attempt at communication with Robinson was made just three days before the Rule 29.15 motion was due on March 13. (35) These three instances were the only attempts Hinkebein made to contact Robinson. (36)

   Hinkebein stopped communicating with Robinson entirely after March 2011. (37) "At the time the amended Rule 29.15 motion was due, [Hinkebein] had not yet decided [whether he would file the motion] or a statement in lieu of an amended motion." (38) Ultimately, Hinkebein never filed an amended motion or a statement in lieu of an amended motion. (39) Robinson was reassigned to a different public defender, and a trial court subsequently found that Hinkebein had abandoned Robinson in his post-conviction relief action. (40)

   Christopher Hines was another client to whom Hinkebein was assigned as counsel, and he is also one of the six subjects of the instant case. (41) Hinkebein entered his appearance as Hines' counsel on or about December 21, 2012. (42) Again, Hinkebein filed a motion for extension of time and was granted until March 5, 2013, to file an amended Rule 29.15 motion. (43) Hinkebein did not attempt to arrange telephone calls with Hines in prison until March 4, March 5, and March 6, 2013. (44) Hinkebein spoke with Hines about his case for the first time on March 4--one day before the amended motion was due. (45) Hinkebein stopped communicating with Hines from March 2013 until August 15, 2013. (46)

   Hinkebein communicated with Hines on or about August 15, 2013, but only after Hines complained to Hinkebein's supervisor that he had not heard from Hinkebein. (47) Hinkebein never filed the amended motion or a statement in lieu of an amended motion. (48) A trial court later found Hinkebein had abandoned Hines in his post-conviction relief action. (49)

   William Williams is also a subject of the instant case. (50) Hinkebein entered his appearance as Williams' counsel on or about September 9, 2013. (51) Hinkebein was granted an extension of time to file an amended Rule 29.15 motion until November 10, 2013. (52) Hinkebein's caseload timeline shows the earliest entry regarding work on Williams' case was November 19, 2013, -- more than a week after the amended motion was due. (53) Hinkebein first spoke with Williams on November 21, 2013, -- eleven days after the amended motion was due. (54) Hinkebein did not speak with Williams after November 21 and failed to speak with five of the six witnesses Williams identified during the November 21 conversation. (55) A trial court later found Hinkebein had abandoned Williams in his post-conviction relief action. (56)

   Hinkebein was also found to have abandoned Dustin Watson, Allen Giles, and Jeremy Arata under similar circumstances wherein Hinkebein failed to communicate with the aforementioned and failed to file the appropriate motions in their post-conviction relief actions, even after receiving extensions of time in each instance. (57) Hinkebein had been admonished on three previous occasions by OCDC for the same violations he was accused of in the instant case: lack of diligence and failure to reasonably communicate with clients. (58)

   In May of 2015, a disciplinary hearing panel was appointed to hear Hinkebein's case. (59) The hearing was held on July 26, 2016, in Jefferson City, Missouri. (60) The panel issued its decision on October 31, 2016, concluding Hinkebein violated Missouri Rules 4-1.3 and 4-1.4. (61) The panel recommended that Hinkebein "be placed on probation for one (1) year with conditions that he not violate the Missouri Rules... and that he report to the Chief Disciplinary Counsel, or his...