What Would A “Good Lawyer” Do?

The  WSJ Law Blog posts about the impending cuts to public defense, because there was all that fat in the budget to pay for PDs sitting in their oak paneled offices eating bon bons in the spare time.  The combination of the populist ideology of sharing the pain and the perpetual issue with the public’s prioritization of indigent defense falling slightly below limos for lesser public officials makes this a gimme.

Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along.  Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.

[Head of the Kentucky Department of Public Advocacy, Edward] Monahan told the WSJ that public defenders offices in the state already have average caseloads in excess of 450 per lawyer and that, with budget cuts, lawyers will have to represent more than 500 clients at any given time.

To the initiated, the arguments against cuts to public defense are obvious, strong and incontrovertible.  If it was severely underfunded before, what’s left to cut?  The answer is in the numbers, which Monahan says will be “more than 500 clients at any given time.”

Forget about the public defenders laid off in a climate of unemployment and few options.  There is no massive group of well-heeled criminal defendants with cash to burn unable to find counsel because lawyers are flush with retained cases. 

The counter is that funding to prosecutors is being cut as well, though the attempt at comparison would cause giggles but for the fact that there is nothing funny about any of this.  Prosecutors always have the option of not bringing more charges then they can prosecute, or clearing their desks when the caseload interfered with binge drinking.  Public defenders have to fit their binge drinking in whenever they can.

Of course, there’s nothing new about PDs suffering for their calling.  Public pretenders, tossed aside at the first opportunity for “real lawyers” without regard to anything other than the fact that defendants would rather be represented by a paid muskrat.  No respect.  This is reflected well in a comment to the WSJ post.

What trials? Almost every criminal case is plea bargained, no trial unless the defendant has a good lawyer. “Good lawyer” does not describe a public defender or court-appointed lawyer, for the most part. If the taxpayer paid defense counsel was any good, that guy wouldn’t be accepting a 500 client caseload.

Inside this deliberate smack is a bit of unexpected truth.  Would a “good lawyer” accept a 500 client caseload?

With the required caveat that many public defenders are terrific lawyers despite the fact that they’re despised by their clients, deemed unreal and unworthy because their services are free and treated like pariah widgets despite their efforts, there is no question but that no lawyer, from Clarence Darrow to Gerry Spence, capable of carrying 500 clients at a time and providing minimally adequate representation.

The problem is that public defenders are employees, given files and directed to handle them.  The problem is that public defenders, to some greater or lesser extent, feel a sense of duty toward their unappreciative clients to do what they can, meager as that may be, and not leave them standing in the well unrepresented, to be chewed up and spit out by a system that finds defendants and their rights a terrible nuisance.  Most public defenders want to defend.

But 500?  No outpouring of emotion or zeal can overcome the number.  Spread too thin doesn’t cover it. 

While criminal defense lawyers who work for a public defenders office, or do indigent defense, may feel an overwhelming sense of obligation toward their employer and their clients, there is a constraint that cannot be ignored.  You see, they are real lawyers.  They maintain an individual duty under the code of professional responsibility, whatever it’s called in your jurisdiction, to provide zealous representation, or at least minimally effective representation.  No employer, legislature, governor or judge can direct a real lawyer to do less.

Regardless of what how the funding is cut, or the numbers of defendants stack up like dead wood in the well, the responsibility of a real lawyer doesn’t change.  You may be pushed to the limit, pushed to a place farther away than you ever thought possible, but the decision of when you have reached your limit is yours, and yours alone.

Don’t delude yourself with romantic notions of martyrdom.  No matter how many poor miscreants’ files are dumped on your desk, no matter how needy their cause and how much you really want to help even if they call you offensive names and want nothing more than rid themselves of your services, you remain a real lawyer.  You have to make the choice that a real lawyer must make.  You have to decide where the line is drawn when you can no longer take another case, when you cannot provide effective representation.

It will anger your boss.  She’s been told to put lawyers on files, and that’s what she intends to do.  You’re the employee, and she expects you to do as you’re told.  The judge won’t be particularly sympathetic, by the way.

None of this matter, unfortunately.  It doesn’t matter that your boss has given you a direct order to take that 501st case.  It doesn’t matter that the judge refuses to acknowledge that you can’t go to trial (or cop a quick plea) with a defendant you’ve never met on a case you’ve never worked.  Practice your smile and shrug, as it will come in very handy.

There will be some who scorn you for your failure to fulfill society’s promise of providing an effective defense to the indigent.  By your refusal, you are personally responsible for failing to defend.  Nonsense.  The duty is societal, not personal. 

So what would a good lawyer, do?  And contrary to the commenters at the WSJ post, you are real lawyers.  Whether you are good lawyers is up to you.  There comes a point where your acceptance of another client exceeds your duty as a lawyer.

If it happens that the system is incapable of providing a lawyer for the defense of an indigent accused of a crime, let the system bear its weight.  Should it collapse under that weight, bummer.  Should it railroad unrepresented defendants, call it out.  But real lawyers have obligations to provide effective representation, and that duty doesn’t diminish because your employer tosses files on your desk.  Of course it will be painful, but if you can’t handle the pain, you’re in the wrong field.

14 thoughts on “What Would A “Good Lawyer” Do?

  1. Kathleen Casey

    “…with budget cuts, lawyers will have to represent more than 500 clients at any given time.”

    That’s from the head PD for the State, “told to put lawyers on files,” the “employer” tossing files on their desks. That’s what “have to” means.
    He’s a lawyer and supposedly the leader, but hasn’t the stones to think and act like a lawyer or a leader.

  2. SHG

    Yup.  The uphill flow of enabling is very much part of the problem.  Where the head PD has the guts, the problem never reaches the line PD. The first question is whether the big guy has the stones to say no.  If not, then the problem falls to each layer below to say no. 

  3. Alex Bunin

    By statute, in Texas “a public defender may refuse an appointment under Article 26.04(f) if: …(2)the public defender has insufficient resources to provide adequate representation for the defendant.”

  4. Alex Bunin

    The tipping point is what I say it is. Our founding document states that our caseloads must remain within the ABA standards, unless I change them, with notice from me to my independent board. I will not allow the attorneys to exceed those levels. 500 cases would be over three times the standard for felonies.

  5. SHG

    When you were named Harris County PD, I wrote that they were lucky to get you.  I wonder if they realize how lucky. If they don’t know already, I expect they may find out soon.

  6. Alex Bunin

    That is too nice. However, after so much bad publicity (much of it justly deserved), Houston has shown a tremendous commitment to this program, including judges, politicians, community leaders, and the bar generally.

  7. Jim Keech

    I cannot fault your position. It is inexorably correct and the only ethical position that bears scrutiny. But.

    It also means that–inevitably–all those attorneys who are possessed of ethics will leave the field, to be replaced by those who do not. The caseloads will not shrink; quite the opposite. The attorneys who felt the responsibility of being defenders and put in the 70-90-?? hours a week to do the job will be replaced by those who work their 40 hours and go home, secure in the knowledge that they have done all that they are required to do.

    And some, now quite outside the criminal arena, will call out the system for its inherent cruelty and indifference. And the system will, perhaps, cast a coldly reptilian eye in their direction and proceed; unimpeded by anyone who actually gives a damn.

    Sic transit gloria mundi

  8. SHG

    So good lawyers will enable unethical lawyering so bad lawyers don’t step into the breach?  Aside from the pure rationalization, how does it ever end, for the PDs or the defendants?  Being screwed by a good lawyer doesn’t feel any better than being screwed by a bad one.

  9. Jim Keech

    I said at the beginning that you were absolutely, unequivocally correct. You’re right, it doesn’t matter much to those being screwed just WHY they’re being screwed. Just don’t ignore the fact that the system will not crumble in the face of our ethics. It will simply find other widgets to slot into place. Widgets that don’t complain as much, or annoy judges with irksome motions or–heaven forfend–trials.

    Your prescription is absolutely correct. But even correct actions have consequences.

  10. SHG

    Maybe so, but there are always consequences.  Better to have consequences for doing the right thing than the wrong thing.

  11. Marty D.

    Triple amen to that sentiment. Too bad the political establishment in Washington can’t feel this way.And if I may add to this, by doing nothing.

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