Podcast on the right to an attorney and the role of public defenders in the criminal justice system

 Here is a 50 minute NPR program on the right to an attorney and the role of public defenders in the criminal justice system.

The Marshall Project report on the practice of charging indigent defendants to pay for fees related to representation by state appointed counsel

 I have blogged before about the unfortunate reality that even 60 years after Gigeon v. Wainwright, there are still deficiencies in the process to get access to representation for people who can't afford it. See here, for example, and the section on right to counsel for lots more on the subject.

Today I am writing, unfortunately, to point out a new article in The Marshall Project on how many defendants are getting charged fees to pay for their "free" appointed counsel.  

According to the report, the reality is that legal representation by appointed counsel is rarely free. The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the costs and that more than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.  

The report focuses on the practice in Iowa, which it says takes these efforts to the extreme.  According to their investigation, not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.

Sixty years After Gideon v. Wainwright, there still a need to bridge the gap in access to justice

 This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, in which the Supreme Court held that states must provide counsel to people who cannot afford an attorney in criminal cases.  The principle was later extended to cover misdemeanor charges and delinquency proceedings.  Yet, as discussed in a recently published short article in The Hill, there is no question that access to public defense in the United States remains elusive and unequal.  You should read the article here.

Sadly, this is not the first time I post this exact same sentiment.  Ten years ago the same issue was discussed in various articles "celebrating" the 50th anniversary of the decision in Gideon.  I posted comments here, and here.

Illinois doubles its compensation for lawyers appointed to represent indigent parties

Citing its commitment to improving access to justice for all and especially indigent parties, the Illinois Supreme Court announced last week an amendment to Supreme Court Rule 299 regarding compensation for attorneys appointed to represent indigent parties. Amended Rule 299 doubles compensation for an attorney appointed by a court to represent an indigent party to $150 per hour (from its previous minimum of $75 per hour) and $150 per hour for time reasonably expended out of court (from its previous minimum of $50 per hour).  More on the story here, here and here.

Justice Says Mississippi Court Rule to Give Poor Defendants Lawyers Isn’t Working And there isn’t much the court can do to enforce it

 Justice says Mississippi court rule to assign lawyers to poor defendants isn't working and there isn’t much the court can do to enforce it.  The Marshall Project has the story here.

Federal public defenders warn budget cuts may threaten their ability to represent clients

 NPR reports that federal public defenders warn budget cuts may threaten their ability to represent clients. Go here for the full story and here for a short audio report on the story.

Mississippi says poor defendants must always have a lawyer, but few courts are ready to deliver

A rule requiring poor criminal defendants to have a lawyer throughout the criminal process took effect last week.  The Marshall Project has the details on the story here.

Sixty years since Gideon v. Wainwright, defendants still face obstacles in their right to an attorney

Last week we celebrated the 60th anniversary of the decision in Gideon v. Wainwright, which recognized that defendants accused of serious crimes have the right to get an attorney appointed by the state.  

Yet, the celebration of the landmark case and the right it recognized is often hard to vindicate because of the obstacles faced by public defenders.

This unfortunate reality was highlighted in a couple of articles this week:

You have the right to a lawyer, but public defenders note a lack of resources, respect (NPR)

Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)

Two courts uphold public defenders' ability to limit caseload

The Legal Profession blog recently reported two different instances where courts in Wyoming and Massachusetts recognized that public defenders should be allowed to refuse new cases. 

In the Massachusetts case, the attorney in charge informed the First Justice of the Springfield District Court that staff attorneys in the Springfield Public's Defenders' Office could not handle any more duty days in that court. In response, the district court ordered that the public defender continue to accept appointments.  The Supreme Court reversed holding that "to the extent such an order may require . . . staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect."

In the Wyoming case, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. The Supreme Court reversed, holding that "[t]he public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload."

Further, the court explained that "Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation.”"

Based on that, the court concluded that the public defender has discretion to decline an appointment or appointments and that in exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.

Illinois launches pilot pro bono program to help State Appellate Defenders Office

The Illinois Supreme Court has launched a pro bono pilot program to reduce the backlog of criminal appeals in the state. During the six-month pilot, which was announced on Feb. 11, volunteer pro bono attorneys will substitute as counsel for lawyers in the Office of the State Appellate Defender (OSAD) in certain criminal appeals.

Illinois Lawyer Now and 2 Civility have the story.

Puerto Rico Bar Association has filed an injunction petition in federal court to halt the implementation of new regulation that imposes mandatory pro bono and low paying mandatory appointment to represent clients in both civil and criminal cases

At some point in 2018, the Puerto Rico Supreme Court adopted a set of rules for the assignment of cases to court appointed attorneys (“Reglamento para la Asignación de Abogados y Abogadas de Oficio de Puerto Rico “) which is set to come into effect on January 1st, 2020.

According to this new system, some lawyers in private practice in Puerto Rico are obligated to be available to provide legal services to clients in both civil and criminal cases when appointed to do so.  The first 30 hours of service must be provided free of charge.  Thereafter, lawyers will be paid at the rate of $30.00 per hour for out of court work and $60.00 per hour for in court or appellate work.  These fees, however, are not to be recovered from a line item in the government’s budget and it is unclear as to whether the government will be able to generate the money to pay them.

In anticipation to the implementation of the new regulation, the Puerto Rico Bar Association (El Colegio de Abogados y Abogadas de Puerto Rico (CAAPR)) has filed a complaint and request for injunction in Federal District Court alleging that the regulation is unconstitutional.

Among other things, the complaint argues that the regulation exempts or excludes broad categories of attorneys from having to provide free legal services including lawyers in public service and those that provide ad honorem services for the judicial branch.

In addition, the complaint argues that forcing only some lawyers to provide legal services for free or for such low rates of compensation that are not enough to cover overhead expenses constitutes deprivation of life, liberty, or property, without due process of law, and a violation of the equal protection of the law.

You can read the complaint here. 

ABA Center for Innovation drafts resolution and report encouraging U.S. jurisdictions to consider innovative approaches to the access to justice crisis

As we near the end of the year and start thinking of "top ten" lists, I think it is fair to say that the top three topics of debate in Professional Responsibility this year were (3) Model Rule 8.4(g), (2) the constitutionality of mandatory bar membership and (1) regulatory changes to allow non-lawyers to participate in the provision of legal services. 

The issue of regulatory changes is now back in the news because the ABA’s Center for Innovation and four standing committees recently published a report and a draft resolution seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers.  They will ask the ABA House of Delegates to vote on the resolution at the ABA's annual meeting in February.

You can download the resolution and the 11 page long report here. 

In a nutshell, the report is based on the proposition that “traditional solutions” (such as increased funding for civil legal aid, more pro bono work, and the creation of the equivalent of a public defenders system for civil cases) have resulted in some modest success, but they have not come close to fixing the problem of lack of adequate access to affordable legal services.

In addition, the report claims that the existing regulatory structure for the legal profession acts as a barrier to innovative alternatives like allowing involvement of other professionals, both within and outside of law firms.

For these reasons, the report encourages regulators and bar associations to follow the example of regulators in Arizona, California, New Mexico, Oregon, Utah, and Washington all of whom are working on proposals to adopt substantial regulatory innovations designed to encourage new models for competent and cost-effective delivery of legal services.

Having said all that, however, the report concludes that it is not clear what type of innovation will be best and, thus, does not recommend any specific amendments to the Model Rules of Professional Conduct.

Instead, the report (and the resolution based on it) call for U.S. jurisdictions to consider regulatory innovations that will develop new ways to deliver competent and cost-effective legal services.

More specifically, the report suggests that the efforts should concentrate in three broad areas of regulatory reform: (1) authorizing and regulating new categories of legal services providers, including non-lawyers; (2) modifying the rules that ban lawyers from partnering and sharing fees with non-lawyers; and, (3)  developing more permissive approaches to the notion of unauthorized practice of law to allow lawyers more freedom to practice across state borders.

Judge orders attorney to violate a rule of professional conduct!

We all know that attorneys have an ethical obligation to provide competent and diligent representation to all their clients. We also know that being unable to do so is a proper argument to refuse a court appointed representation. 

Yet, this does not seem to apply to public defenders in Kansas City, where a judge has decided to order specifically ordering PDs to violate their ethical duties, and at least another one thinks the problem is that public defenders want time to meet their clients and prepare for their cases when they should just be entering guilty pleas.  Here is a copy of one such order. 

Aside from the fact that the state needs to do something about the PD system, the conduct of the judge who signed the order is outrageous and I hope he is reprimanded for it.  If there is a crisis in the system, it needs to be addressed but purposely ordering an attorney to be unethical, and to violate a defendant's constitutional rights in the process is reprehensible.

Critics of the way the criminal justice system is being run in Missouri have called it "assembly line justice," in which judges want to push defendants to plead guilty while giving defense lawyers little to no opportunity to meet their clients privately, or prepare for their cases.  The ABA Journal has the story here. 

New California law imposes changes to the program that provides free legal services for poor in some civil cases, including custody matters and housing

Last week, California Governor Gavin Newsom signed into law a bill that imposes some changes to an existing law that provides free legal counsel to be appointed to low-income Californians for any level of legal or physical child custody matters, probate conservatorships and housing-related issues including eviction.

The new law requires the California Judicial Council to develop and provide grants, which could be donations from public or private entities, for programs in selected courts that provide legal counsel to the poor. Child custody cases would receive the highest priority for funding, regardless of whether one side is represented and the other is not.

You can read the bill here.

In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan

The New York Times has published an article on how a new Trump administration immigration initiative is forcing many asylum seekers to navigate the court system without representation.  The article is called In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan  and you can read it here.

Article on Maine's system for providing counsel to indigent criminal defendants

The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants.  According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. 

You can read the full article here.

Wisconsin Supreme Court to consider raising pay for private lawyers assigned to represent criminal defendants

Wisconsin's Public Defender's Office assigns private attorneys around 40 percent of its cases and pays them the lowest rate in the nation. Now, the office is having a difficult time finding lawyers willing to take those cases. Tomorrow, the state Supreme Court will take up a petition that would give attorneys a raise. Wisconsin Public Radio's Danielle Kaeding has more.

9th Circuit finds juvenile facing deportation has no right to free lawyer

The ABA Journal is reporting that a federal appeals court ruled today that a minor has no right to a court-appointed lawyer in immigration proceedings.  Go here for the full story.

UPDATE (1/20/18):  Jurist has more on the story and links to the decision here.

Illinois Supreme Court decides People v Cole, holding the Public Defender's office is not a "firm" for purposes of conflicts of interest

Back in September I wrote about a case before the Illinois Supreme Court called People v Cole in which the Public Defender refused to represent a client arguing that accepting the representation would constitute a concurrent conflict of interest.  Go here for that post which includes links to the oral argument.

In my original post, I wrote that based on the position adopted by the US Supreme Court in Holloway v Arkansas, "it would seem like the contempt conviction should be reversed."  But my position assumed that the PD's office would be considered just like any other law firm for purposes of a conflict -- ie, that if one lawyer had a conflict, the conflict would be imputed to other lawyers in the firm.

Well, about a month ago, the Illinois Supreme Court issued its decision and it did not hold as I predicted precisely because it attacked my premise.  It reiterated that in Illinois the PD's office should not be considered to be a law firm for purposes of conflicts of interest. 

You can read the opinion here and a good comment on the case at the Legal Ethics Forum.

ACLU sues Nevada alleging constitutionally inadequate indigent defense system

The ACLU of Nevada has sued the state, alleging that indigent defense in rural counties is so inadequate—and so poorly overseen by state authorities—that the defense provided is inadequate  under the Sixth Amendment.  The ABA Journal has the story here.