YourABA December 2012 Masthead

The consequences of excessive caseloads

The pervasive problem of high caseloads for public defenders is the topic that Norman Lefstein, a leading expert on the delivery of indigent defense services in state criminal courts, has tackled in his book Securing Reasonable Caseloads: Ethics and Law in Public Defense. Lefstein, professor of law and dean emeritus at Indiana University’s School of Law, provides both a comprehensive review of the legal authority pertaining to excessive caseloads and recommendations on managing and dealing with high caseloads.

His book, available free for American Bar Association members here, was published by the ABA Standing Committee on Legal Aid and Indigent Defendants. Following is an excerpt on how excessive caseloads affect lawyer supervision and mentoring:

The ABA’s 10 Principles of a Public Defense Delivery System stress the importance of supervision: “Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.” However, when caseloads are excessive, the time pressures are enormous not only for the lawyers who provide daily representation but also for lawyers in management who should be providing essential supervision and mentoring. As a result, no one is really able to ensure on a case-by-case basis that competent and diligent representation is being provided as required by professional conduct rules and defense performance standards.

While the ABA 10 principles call for the systematic supervision of defense counsel, the most important authority in support of supervision is not cited. … Model Rule 5.1, which has been adopted by states throughout the country, requires that those in managerial positions ensure that organizations have “in effect measures giving reasonable assurance that all lawyers … conform to the Rules of Professional Conduct.”

Rule 5.1 further states that those in charge of defense programs are “responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct.” Also, the ethical duty to provide adequate supervision was expressly invoked by the ABA Ethics Committee in Formal Opinion 06-441.

Courts have addressed the failure of law partners in private practice to supervise subordinate lawyers. For example, in Davis v. Alabama State Bar, two partners were held to have violated Rule 5.1 for failing “to make reasonable efforts to ensure that the lawyers in their firm confirmed to the Rules of Professional Conduct.”

There was testimony that these two attorneys imposed unmanageable caseloads on associate attorneys, many of whom were inexperienced … Former associates testified that because of the sheer volume of cases, the amount of time that could be spent on each case was so limited as to make it impossible for them to adequately represent their clients. At the hearing before the Disciplinary Board, the attorneys’ own expert witness on Social Security law … testified that the Social Security caseload … could not have been adequately handled by the one attorney assigned to it … The evidence presented amply showed that the two attorneys, in an effort to turn over a huge volume of cases, neglected their clients and imposed policies on associate attorneys that prevented the attorneys from providing quality and competent legal services.

Is there any real difference between this case and public defense agencies, in which inexperienced court-appointed lawyers carry overwhelming caseloads with little or no supervision?

The substandard client representation is substantially the same. Although the law partners in the Alabama case were willful and motivated by financial profit in permitting their associates to operate with too many cases, heads of defense agencies, while morally less culpable, are nevertheless complicit in the government’s failure to provide adequate funding unless they vigorously object in court or take other appropriate action. In fact, if chiefs of such agencies do not challenge the status quo (e.g., ask the court to halt new appointments and perhaps also request permission to withdraw from some cases), they will almost certainly violate rules of professional conduct. This is because the heads of such agencies, due to excessive caseloads, cannot ensure compliance by subordinate lawyers with professional conduct rules, thereby violating Rule 5.1; this, in turn, triggers a mandatory duty to seek withdrawal from representation as required by Rule 1.16.

Although no heads of public defense agencies appear to have been disciplined as a result of inadequate supervision or otherwise failing to ensure compliance with professional conduct rules, they are nevertheless at some risk if they refuse to take action to alleviate the agency’s caseload problems.

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