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AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED, That the American Bar Association urges state, territorial and tribal governments to
enact legislation to prohibit the retaliatory discharge of a Chief Public Defender or other head of an
indigent defense services provider because of his or her good faith effort to control acceptance of
more clients than the office can competently and diligently represent, in accordance with their ethical
obligations.
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REPORT
Summary of the Resolution
The Resolution calls upon governments to enact legislation that specifically prohibits retaliatory
discharge of a Chief Public Defender in response to his or her good faith efforts to ensure
attorneys in their office provide competent and diligent representation in accordance with ABA
Formal Ethics Opinion 06-441. That opinion mandates that the workload of public defender staff
attorneys must be controlled to prevent breach of the ethical obligation to provide competent and
diligent representation. The Resolution seeks to protect the Sixth Amendment right to the
effective assistance of counsel by protecting indigent defense providers having managerial
responsibility who declare their office unavailable for new appointments or who file a motion to
withdraw from representation due to an excessive caseload. The term “head” includes any
supervisor having managerial responsibility. “Good faith” means having “reasonable grounds” to
believe that a breach of ethics would likely occur unless the action is taken.
Nature of the Problem
Numerous studies by the ABA and others including the Department of Justice have documented
the current “crisis in indigent defense” which is due to excessive caseloads that overburden
public defender offices across the country.1 The Department of Justice’s Bureau of Justice
Statistics found that almost three-fourths (73%) of county indigent defense systems operate
under caseloads which exceed ABA maximum caseload standards.2 In 15 of the 22 state-wide
systems, felony and misdemeanor caseloads are also excessive and exceed ABA standards.3
Even Attorney General Eric Holder has candidly acknowledged that we have a “crisis in indigent
defense.”4
ABA Formal Ethics Opinion 06-441 addresses this problem by mandating that the workload of
lawyers representing indigent defendants be controlled to prevent the breach of their ethical
obligation to provide competent and diligent representation to each client. The opinion declares:
“Lawyer supervisors, including heads of public defenders’ offices and those within such offices
having intermediate managerial responsibilities, must make reasonable efforts to ensure that the
other lawyers in the office conform to the Rules of Professional Conduct.” This mandate, based
upon Rule 5.1 of the ABA Model Rules of Professional Conduct, thus requires Chief Defenders
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See ABA, EIGHT GUIDELINES OF PUBLIC DEFENSE RELATED TO EXCESSIVE WORKLOADS (August 2009); ABA,
THE STATE OF CRIMINAL JUSTICE, Chapter 9 (2009); Report of the National Right to Counsel Committee, Justice
Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (The Constitution Project, 2009); The
Presumption of Guilt: Systemic Factors that Contribute to Ineffective Assistance of Counsel in California, 45 Cal.
W. L. Rev. 263 (2009); NLADA, EVALUATION OF TRIAL-LEVEL INDIGENT DEFENSE SYSTEMS IN MICHIGAN: A
RACE TO THE BOTTOM,(2008); ABA Standing Committee on Legal Aid & Indigent Defendants , Gideon’s Broken
Promise: America’s Continuing Quest for Equal Justice (2004); NLADA, Final Report of the National Advisory
Committee on Indigent Defense Services (1996).
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See D. J. Farole, Jr. and L. Langton, Bureau of Justice Statistics, Special Report: Census of Public Defender
Offices 2007, County-Based and Local Public Defender Offices, 2007 (September, 2010) and ABA, Ten Principles
of a Public Defense Delivery System (2002).
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L. Langton, D. J. Farole, Jr., Bureau of Justice Statistics, Special Report, Census of Public Defender Offices 2007:
State Public Defender Programs, 2007 (September, 2010), available at http://bjs.ojp.usdoj.gov/content/pub/ pdf/
spdp07.pdf.
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Remarks of Attorney General Eric Holder, delivered on June 24, 2009, at the American Council of Chief
Defenders Conference, Washington D.C.
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and supervisors to “take reasonable steps to ensure that lawyers in the office they supervise are
acting diligently in regard to all legal matters entrusted to them, communicating appropriately
with the clients on whose cases they are working, and providing competent representation to
their clients.”5
Chief Public Defenders who attempt to comply with this ethical mandate, however, often face
the threat or actual fact of retaliation for challenging excessive caseloads. 6 In many jurisdictions
the Chief Public Defender is an “at will” employee, and can be fired without cause. 7 Although
courts have recognized an exception to the “at will” doctrine for termination based upon a reason
that violates public policy, not all states recognize such a “public policy” exception and there is
no uniform definition which would protect a Chief Defender who challenges an excessive
caseload.8
Proposed Legislation
The resolution therefore calls for governments to enact legislation to protect Chief Defenders and
other non-union supervisory personnel from wrongful termination for attempting in good faith to
provide competent and diligent representation in accordance with ABA and state bar mandated
ethical obligations.9 The legislation should specifically indicate that it is in addition to any state
law, common law or contractual protections and remedies in order to allow safeguards beyond
this minimal level of protection.
The legislation should: (1) specifically prohibit bringing disciplinary proceedings against or
otherwise summarily terminating or sanctioning such managerial personnel primarily based upon
their good faith refusal to accept appointment to additional cases, or their filing in good faith of a
motion to withdraw from representation, and (2) create a minimum standard of “good cause” as a
ground for bringing disciplinary proceedings against or for terminating the employment of the
head of an indigent defense services provider, or other non-union supervisor who has managerial
responsibility. “Good faith” should be defined to mean reasonable grounds for believing that
such action is necessary, in accordance with ABA Formal Ethics Opinion 06-441, to control the
workload of staff attorneys representing indigent defendants to prevent breach of the staff
attorney’s ethical obligation to provide competent and diligent representation to each client.
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ABA Formal Ethics Opinion 06-441, citing Rule 5.1.
See The Presumption of Guilt, supra n.1, at 299-300 and n.82.
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See Portman v County of Santa Clara, 995 F2d 898, 901 (1993). Portman “stated at a public budget session that
the lawyers in the public defender's office faced malpractice and professional disciplinary action for taking too many
cases, and stated he would have to ask the courts directly for additional personnel if the Board did not grant his
requests [for additional staff].” Id. According to court documents Portman was reprimanded for this speech and
subsequently terminated after having received consistently high performance ratings as Chief Defender for 18 years.
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Courts in Alabama, Florida, Georgia, Louisiana, Maine, New York and Rhode Island have not adopted a public
policy exception to the “at will” doctrine. See Lefstein, Securing Reasonable Caseloads: Ethics and Law in Public
Defense, Chapter 5 (2011).
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The proposal is limited to managerial public defenders because Formal Ethics Opinion 06-441 specifically
instructs staff attorneys who believe they have an excessive caseload to first seek resolution within the chain of
command including appeal to any governing board of a public defender office. If a reasonable resolution in the
attorney’s view is not obtained, the attorney should then file a motion with the trial court to withdraw from a
sufficient number of cases to allow competent representation. The Ethics opinion instructs that the attorney must
continue to represent clients if the trial court denies that motion. ABA Formal Ethics Opinion 06-441, page 6.
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Previous ABA Resolutions
There are prior resolutions related to indigent defense, but none to our knowledge address this
specific issue.
Respectfully submitted,
William Shepherd, Chair
Criminal Justice Section
February 2013
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GENERAL INFORMATION FORM
Submitting Entity:
Criminal Justice Section
Submitted By:
William Shepherd, Chair
1. Summary of Resolution(s).
This resolution urges jurisdictions to enact legislation to prohibit the retaliatory discharge of
a Chief Public Defender, or other head of an indigent defense services provider, because of
his or her good faith effort to prevent acceptance of more clients than the office can
competently and diligently represent.
2. Approval by Submitting Entity.
The proposed resolution was approved by the Criminal Justice Section Council at its October
27, 2012 Fall Meeting in Washington, DC.
3. Has this or a similar resolution been submitted to the House or Board previously?
There are prior resolutions related to indigent defense, but none to our knowledge addresses
this specific issue.
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
There are prior resolutions related to indigent defense, but none to our knowledge addresses
this specific issue. This resolution would promote ABA policy embodied in the ABA Ten
Principles of a Public Defense Delivery System and help ensure compliance with applicable
ethical rules.
5. What urgency exists which requires action at this meeting of the House?
This resolution calls for governments to enact legislation to protect Chief Defenders and
other non-union supervisory personnel from wrongful termination for attempting in good
faith to provide competent and diligent representation. The urgency of this action exist
because of the current national “crisis in indigent defense” created by budget cuts and
resulting excessive caseloads. Public defender offices across the country are seriously
overburdened by such caseloads which threaten their ability to provide competent and
diligent representation. Yet indigent defense managers, who are frequently “at will”
employees, face the threat or actual fact of retaliation and termination if they challenge such
excessive caseloads.
6. Status of Legislation. (If applicable)
Not applicable.
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7.
Brief explanation regarding plans for implementation of the policy, if adopted by the House
of Delegates.
The policy will be distributed to various criminal justice stakeholders in order to encourage
and facilitate legislative action. The policy will also be featured on the Criminal Justice
Section website and in Section publications.
8. Cost to the Association. (Both direct and indirect costs)
No cost to the Association is anticipated.
9. Disclosure of Interest. (If applicable)
Disclosure of Interest is unknown.
10. Referrals.
At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in
the 2013 Midyear Agenda Book for the House of Delegates, it is being circulated to the
chairs and staff directors of the following ABA entities:
Standing Committees
Legal Aid and Indigent Defendants
Professional Discipline
Professionalism
Special Committees and Commissions
Coordinating Council for the Center for Professional Responsibility
Death Penalty Representation Project
Sections, Divisions
Individual Rights and Responsibilities
Judicial Division
National Conference of Federal Trial Judges
National Conference of State Trial Judges
Litigation
State and Local Government Law
Young Lawyers Division
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11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Laurence Benner
California Western School of Law
225 Cedar Street
San Diego, CA 92101-3046
Phone: (619) 525-1490
Email: lbenner@cwsl.edu
12. Contact Name and Address Information. (Who will present the report to the House? Please
include name, address, telephone number, cell phone number and e-mail address.)
Stephen A. Saltzburg, Section Delegate
George Washington University Law School
2000 H Street, NW
Washington, DC 20052-0026
Phone: (202) 994-7089; (202) 489-7464
Email: ssaltz@law.gwu.edu
Neal R. Sonnett, PA, Section Delegate
2 S. Biscayne Boulevard, Suite 2600
Miami, FL 33131-1819
Phone: (305) 358-2000
Email: nrs@sonnett.com
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
This resolution urges jurisdictions to enact legislation to prohibit the retaliatory
discharge of a Chief Public Defender, or other head of an indigent defense services
provider, because of his or her good faith effort to prevent acceptance of more clients
than the office can competently and diligently represent.
2.
Summary of the Issue that the Resolution Addresses
With increased workload comes the possibility of a public defender breaching the
ethical obligation to provide competent and diligent representation, and violating a
defendant’s Sixth Amendment right to effective assistance of counsel. Public
defender offices across the country are seriously overburdened by excessive caseloads
which threaten their ability to provide competent and diligent representation. For
example, DOJ statistics found that 73% of county indigent defense systems operate
under caseloads which exceed ABA maximum caseload standards. Chief Defenders,
who are frequently “at will” public employees often, face the threat or actual fact of
retaliation if they attempt to challenge such excessive caseloads.
3.
Please Explain How the Proposed Policy Position will address the issue
The resolution would protect Chief Public Defenders from wrongful termination for
attempting in good faith to provide competent and diligent representation in
accordance with ABA and state bar mandated ethical obligations.
4.
Summary of Minority Views
None are known.
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