Budget Cuts Threaten Promise of Equal Justice

The Recorder
Commentary By Jeff Adachi
February 13, 2009

Budget cuts and soaring caseloads are pushing teetering public defender’s offices closer to the brink of collapse. However, after years of being under-resourced and overwhelmed, public defenders are finally pushing back.

Last year, the Miami-Dade County public defender’s office sued the state of Florida for the right to refuse cases after experiencing a $2.48 million budget cut and a 29 percent caseload increase. In September, a Florida judge allowed the office to reduce its caseload by turning away noncapital felony cases. The case is currently under review by a Florida appellate court.

According to news reports, Miami-Dade public defenders are not alone. Public defenders in Kentucky, Minnesota, Missouri, Maryland, Arizona and Tennessee have either refused to accept new cases or have sued to reduce excessive caseloads. With public defender workloads growing while funding is being reduced, more offices may soon follow their lead.

In most jurisdictions, public defenders handle the majority of criminal cases. However, public defenders do not control the number of criminal cases that are filed. Record unemployment has increased the ranks of people who no longer have the financial means to hire private counsel and must rely on public defenders. Budget reductions associated with the current economic crisis have made it impossible for traditionally underfunded public defenders to absorb the influx in workload without compromising their professional integrity and their clients’ right to a vigorous defense.

When excessive caseloads become an obstacle to providing effective assistance of counsel, chief defenders are ethically required to decline additional cases. The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 06-441, issued in May 2006, clearly sets forth an attorney’s ethical obligation when faced with an excessive caseload: “If a lawyer believes that her workload is such that she is unable to meet the basic ethical obligations required of her in the representation of a client, she must not continue the representation of that client or, if representation has not yet begun, she must decline the representation.”

The ABA opinion cites Principle 5 of the ABA’s Ten Principles of a Public Defense Delivery System: “Counsel’s workload, including appointed and other work, should never be so large as to interfere with the rendering of quality representation or lead to the breach of ethical obligations, and counsel is obligated to decline appointments above such levels.”

The ABA opinion also references Ethics Opinion 03-01, issued in April 2003 by the American Council of Chief Defenders, a division of the National Legal Aid & Defender Association: “When confronted with a prospective overloading of cases or reductions in funding or staffing which will cause the agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically required to refuse appointment to any and all such excess cases.”

One practical complication is that chief defenders who are appointed risk losing their jobs if they refuse cases. Several California chief defenders who refused to handle cases without sufficient resources were “underbid” by other contractors who were willing to accept the contracts. As the only elected public defender in California and one of the few in the country, I am in a better position to assert these ethical obligations.

When the San Francisco mayor and Board of Supervisors recently refused my request to fill two existing paralegal positions despite our increased workload, I made the decision to begin declining representation in complex felony cases. Because of our staffing shortage, 14 deputy public defenders are without paralegal or secretarial support. This directly affects our office’s ability to handle homicide and other complex cases, which involve large volumes of discovery and evidence. It is less expensive to use paralegals than attorneys to do this work.

Hiring two paralegals for the remainder of the year would have cost the city $49,500. Each complex case that we are forced to turn away will cost the city between $25,000 and $100,000. I estimate that hiring private counsel to handle these cases will cost $500,000 to $1 million over the next year. While refusing cases provides my staff with immediate relief, it is an imperfect solution, because, in the long run, it will only deepen the city’s financial crisis.

Chief defenders cannot permit a level of substandard representation of the poor that would otherwise be unacceptable for paying clients. Public defenders around the nation must continue to take an ethical stand to protect the professional integrity of their offices and the constitutional rights of the poor.

However, chief defenders will only succeed if the entire legal community stands up and supports their cause. This recently occurred in New York, when an independent commission, led by more than 100 legal and community organizations, was formed to examine the impact of budget cuts on indigent defense. Politicians need to be educated on the importance of funding public defense, and how we, as a society, should not sacrifice the very basic legal rights guaranteed to all citizens in the name of budget cuts.

Jeff Adachi is San Francisco’s public defender and is a former member of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants.