Academic journal article Missouri Law Review

Ensuring the Ethical Representation of Clients in the Face of Excessive Caseloads

Academic journal article Missouri Law Review

Ensuring the Ethical Representation of Clients in the Face of Excessive Caseloads

Article excerpt


The lack of adequate indigent defense funding at the state and local levels has caused a crisis. In state after state, public defenders face overwhelming caseloads that inevitably make quality legal representation for clients much more of a dream than a reality. (3) Regardless of the promises in the U.S. federal and state constitutions, poor persons charged with crimes are increasingly unequal before the law. As the title of this Symposium simply states, indigent defense systems are "broke and broken." The criminal justice system is not functioning fairly, ethically, and within constitutional mandates.

While there are several potential reforms that would fix the problem of excessive caseloads for public defenders, inadequate indigent defense systems have been widespread and chronic. This Article contends that current conditions will not change until and unless there is greater focus on the ethical obligation of the legal profession to ensure quality representation for the poor. In addressing the ethical dimensions of the crisis in indigent defense services, this Article focuses on the ethical responsibilities of supervising attorneys and managers of public defender programs to ensure quality representation of clients in the face of crushing caseloads.

This Article is divided into three substantive parts. First, I begin with a short discussion of the most important criminal justice right guaranteed to each of us under the Bill of Rights--the Sixth Amendment right to assistance of counsel. (4) For most Americans, the right to counsel is obtained through indigent defense providers, (5) and the quality of the representation is inextricably tied to three lesser known rights, or perhaps wishes, found in the Public Defender Bill of Rights: "[t]he right to meaningful, weighted caseload standards"; "[t]he right to judges who understand my [the public defender's] role in the [justice] system"; and "[t]he right to a boss who will back me up." (6) Next, I focus on the ethical implications for line public defenders, (7) their supervising attorneys, and managers of public defender programs. Finally, I conclude by discussing strategies for public defender supervising attorneys and managers to consider as tools to fulfill their ethical obligations and to advance the right to counsel for their clients.


The right to counsel was a revolutionary concept when it was made part of the U.S. Constitution. Early English common law prohibited the accused facing charges that carried the penalty of death, including felonies such as murder, robbery, or treason, from hiring a lawyer to assist with the defense. (8) Denying the accused counsel led to swift prosecutions and certain punishment and left the authority of the state unquestioned. (9) The accused could hire counsel only if facing minor charges, which included misdemeanors such as libel or battery, for which the penalties were merely incarceration or loss of property. (10) The Treason Act of 1695 modified this common law arrangement and permitted those accused of treason representation by counsel. (11) By the time the framers of the U.S. Constitution inserted the Sixth Amendment into the Bill of Rights, the right to counsel in England was still limited to misdemeanor and treason cases, though in practice English judges often permitted retained counsel to play some limited role in felony cases after the passage of the Treason Act. (12)

In the United States, initially the right to counsel under the Sixth Amendment was confined to federal cases, and the right guaranteed only that the accused could retain counsel. (13) The right to counsel began to expand in the early 1930s when the Supreme Court decided Powell v. Alabama, which guaranteed the right to government-provided counsel in capital cases in state courts. (14) Six years later, in Johnson v. …

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