. Legal ethics

A little something to be thankful for

If you’re a lawyer, then many days you may find yourself either complaining that you are too busy or that you aren’t busy enough.  Rare is the time for lawyers (in my experience) when they think their workload lands in a “just right” kind of spot.  There actually can be such a thing as too busy.  In fact, the ethics rules in Tennessee (and elsewhere) even recognize this in a statement relegated to the Comment to RPC 1.3 (Diligence).    Comment [2] to RPC 1.3 of the ABA Model Rules (Tennessee’s provision is identical) reads:  “A lawyer’s work load must be controlled so that each matter can be handled competently.”

Unless you happen to work as a public defender though, you are very unlikely to end up with a workload that truly jeopardizes your ability to handle each of your cases competently.  For most lawyers who get to that place, they have no one to blame but themselves.  If you are a public defender, there’s a really good chance you are in that boat through no fault of your own.

Two news items this week help to drive this point home.  The first comes out of Maryland where a public defender’s overwhelming workload was actually cited by the trial court when ordering the retrial of a murder case that had ended in a conviction.  The defendant’s attorney, a public defender, overstepped his bounds by refusing to let his own client testify in her defense — a decision that RPC 1.2(a) clearly bestows unequivocally on the client.  The RPC 1.2(a) ethical transgression, and not a caseload at a level violating RPC 1.3,  was the substantive justification for the reversal, but the court went out of its way to attempt to make clear that it didn’t consider the error indicative of the type of attorney the public defender was.  Rather, the judge characterized the error as a side effect to having been handling 88 felony cases over a six month period, explaining in the ruling that the p.d. in question was “a very good attorney,” but “was simply overwhelmed by the number of cases that he had.”

The second new item comes out of New Orleans, where the Orleans Parish Public Defenders Office has filed a motion – indicated to be the first of several – with a criminal court judge to request that the office not be assigned any new cases.  The motion explains that the combination of excessive caseloads, budget cuts, hiring freezes, and staff shortages have all led to a situation where the members of the office aren’t able to provide “constitutional, effective representation.”  Contrary to how he views the world, the motion does not blame the former defensive coordinator of the New Orleans Saints in any fashion.  The Times-Picayune article on the story reports that the public defenders’ office estimates that it presently represents 85% of all felony criminal defendants in the Parish.  Local media also reports that the first day of a multiple day hearing on the motion has begun and the founder of The Innocence Project is expected to testify next week.

So, if you can’t think of anything else to be thankful for this week, be thankful that you’re not a public defender.  And, if you’re reading this, you likely aren’t.  Because you don’t have the time to spare.