90-10: Declining or Terminating Representation; Responsibilities of Supervisory Lawyer; Responsibilities of Subordinate Lawyer; Professional Independence of Lawyer

9/1990

Ethical obligations of Public Defender and individual attorneys in his office who are carrying unduly high annual caseloads.

FACTS

The inquiring attorney is the Public Defender of a metropolitan Public Defender's Office. All trial attorneys in the Defender's office carry high annual caseloads. From statistics available for the first five months of 1990, the annualized projections of caseloads are:

DIVISION ANNUALIZED CASELOADS

Trial 225.20

(felony and misdemeanor;

misdemeanor equals 1/2 case)

Juvenile 453.50

Mental Health 499.20

Appeals 157.13

In State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984), the Arizona Supreme Court held that the Mohave County bid system for providing counsel for indigent defendants so overworked contract attorneys that it violated the due process and right to counsel clauses of the Arizona and United States Constitutions. In reaching its decision, the Court noted that a draft "Guidelines for Negotiating and Awarding Indigent Defense Contracts" produced for the National Legal Aid and Defender Association recommended that, under no circumstances, should maximum allowable caseloads for each full-time attorney exceed 150 felonies per attorney per year, 300 misdemeanors per attorney per year, 200 juvenile cases per attorney per year, 200 mental commitment cases per attorney per year, or 25 appeals to appellate court per attorney per year.

The public Defender notes that the projected annual caseloads of attorneys in his office will substantially exceed the Joe U. Smith standards. In particular:

DIVISION SMITH STANDARDS OVERAGE PERCENTAGE OVER

Trial 150 75.50 50%

Juvenile 200 253.50 127%

Mental Health 200 299.50 150%

Appeals 25 132.13 529%

The Public Defender believes that, because of economies of scale, attorneys in his urban area can handle caseloads slightly in excess of the Joe U. Smith standards. For example, the Public Defender believes that, under certain circumstances, an attorney can handle either 160 felony and misdemeanor cases per year, or 75 appeals per year, or 250 juvenile cases per year, or 300 mental health cases per year. However, even under these numbers, the caseloads handled by attorneys in the office are still excessive.

QUESTIONS

1. Under these estimated annualized caseloads per attorney, does the Public Defender have an ethical obligation to decline to accept additional cases until caseloads are reduced to an acceptable level?

2. Under these estimated annualized caseloads per attorney, do individual attorneys in the Public Defender's Office have an ethical obligation to withdraw from cases if they believe their caseloads are such that they cannot competently represent assigned clients?

ETHICAL RULES CITED

ER 1.1. Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ER 1.3. Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.16. Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

*****

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

*****

ER 3. 2. Expediting- Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

ER 5.1. Responsibilities of a Partner or Supervisory Lawyer

*****

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

(1), the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

ER 5.2. Responsibilities of a Subordinate Lawyer

(a) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

ER 5.4. Professional Independence of a Lawyer

*****

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

*****

ER 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.

*****

RELEVANT PRIOR ARIZONA OPINIONS

Opinion No. 86-4 (March 3, 1986)

Opinion No. 87-13 (June 17, 1987)

OPINION

Although both questions asked by the Public Defender can be simply answered "yes," the questions present several subsidiary issues which we will treat separately.

OVERWORK AND THE DUTIES OF COMPETENCE AND DILIGENCE

There can be no question that taking on more work than an attorney can handle adequately is a violation of a lawyer's ethical obligations. In State v. Joe U. Smith, supra, the Arizona Supreme Court stated that "accepting more cases than can be properly handled may result not only in reversals for failing to adequately represent clients, but in disciplinary action for violation of the Code of Professional Responsibility." 140 Ariz. At 363, 681 P. 2d at 1382. Joe U. Smith was written under the former Code of Professional Responsibility which did not even include a specific duty of competence. The new Ethical Rules, adopted in 1985, contain a specific duty of competence, ER 1.1. No one seriously questions that a lawyer's staggering caseloads can result in a breach of the lawyer's duty of competence.

In our Opinion No. 86-4, we considered whether the principles of Joe U. Smith applied to city prosecutors of misdemeanor cases as well as to defense attorneys. The committee had no difficulty concluding that the duties of competence (ER 1.1) and diligence (ER 1.3) applied to prosecutors as well as to any other lawyer. These duties necessarily imply a duty to avoid crushing workloads, and the Comment to ER 1.3 explicitly states that: HA lawyer's workload should be controlled so that each matter can be handled adequately." We concluded:

"Ethical Rule 1.16 makes clear that a lawyer with a maximum caseload must decline new cases or terminate representation where the representation will result in violation of the Rules of Professional Conduct or other law. Consequently, where the demands of an extreme caseload make an attorney unable to devote sufficient attention to a particular case, acceptance of that case will cause a violation of Ethical Rules 1.1 on competent representation, 1.3 on attorney diligence and 1.16 for failing to decline or terminate representation where the representation will violate those rules.

“Thus, a lawyer who accepts more cases that he can competently prosecute will be committing an ethical violation.”

ANNUALIZED CASELOADS FOR A PUBLIC DEFENDER OFFICE

The inquiring attorney refers to the negotiating guidelines of the National Legal Aid and Defender Association for allowable caseloads, cited in State v. Joe U. Smith, supra. Since that case, these allowable case load numbers have been referred to in Arizona as the Smith standards.

Although the ethical rules plainly require an attorney to regulate his or her caseload so that each matter can be handled diligently and competently (see ER 1.3, Comment), the ethical rules do not set out any mathematical maximum of work an attorney can handle. Obviously, the amount of work an attorney can undertake requires the application of professional judgment to the kinds of cases an attorney handles in light of the duties of competence and diligence. Attorneys must live up to the requirements these duties imply:

"Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence." (Comment to ER 1.1)

Whether the Smith standards are a mathematical maximum that a public defender can never exceed presents a pure legal question beyond the committee's jurisdiction. However, attorneys are ethically required to follow the law, including any standards set forth in Smith. The committee believes that the Smith standards are, at the very least, an important guideline an attorney may take into account when making a professional judgment as to whether the attorney's caseload is excessive. In some circumstances, caseloads below the Smith standards may be unethical. An annual felony caseload per attorney of 100 cases, where each felony charged first degree murder with a possible punishment of death, would grossly exceed the most brilliant attorney's abilities. Conversely, it is possible, but unlikely, that trial and appellate caseloads slightly in excess of the Smith standards may be within an attorney's capabilities. For example, a full-time appellate attorney may be able to handle the routine appeals, such as cases with issues involving only a change of plea, in excess of the 25 per year set forth in Smith. The determination of whether an attorney must restrict his or her caseload requires the exercise of independent professional judgment. The determination must take into account a number of individual factors, such as case complexity, severity of punishment, availability of attorney and staff assistance, time commitments to extraneous matters such as handling Justice and Superior Court calendars, and case-processing guidelines, among others.

In the case of a Public Defender's Office, this judgment cannot be delegated to a nonlawyer individual or entity. In our Opinion No. 89-13, we addressed control issues between the director of a public agency providing legal services to indigent defendants and the manager of the governing body which funds the public agency. We concluded:

“In the instant case, the inquiring lawyer must walk a tight rope. In those areas in which professional judgment is not in question, confidences of clients are not violated, or in which there is no conflict of interest, the inquiring attorney may abide by directions of the manager. However, in any instance ... where the lawyer's professional judgment might be impaired, or in which there is a conflict of interest or in which client confidences may be violated, the lawyer ethically is bound to follow his own counsel and the Rules of Professional Conduct."

Acceptable caseloads, which are so intertwined with the ethical duties of competence and diligence, can only be decided by an attorney. Accordingly, when a Public Defender has made a factual determination that his or her Office cannot competently and diligently represent the number of persons assigned to it, the Public Defender must take action so that "A lawyer's workload should be controlled so that each matter can be handled adequately." (Comment to ER 1.3)

SUPERVISORY AND SUBORDINATE LAWYER RESPONSIBILITY

A supervisory lawyer, such as a Public Defender, must make efforts to ensure that other lawyers within the Office conform to the Rules of Professional Conduct. ER 5.1(b). Thus, when a public Defender has knowledge that subordinate lawyers, because of their caseloads, cannot comply with their duties of diligence and competence, the Public Defender must take action. In our Opinion No. 86-4, concerning the application of the Joe U. Smith case to city prosecutors, we wrote that:

"If the City Attorney determines that the caseload anticipated under the contract cannot be competently prosecuted, assisting or inducing another lawyer to accept the contract would be professional misconduct."

The committee notes that this ethical obligation on the public Defender is a weighty one. As supervisory lawyer over a large staff of other lawyers, whose experience may range from one year to many years, ER 5.1(b) places a mandatory duty on the supervisory lawyer to “make reasonable efforts” to ensure that subordinate lawyers conform to the Rules of Professional Conduct. The duty is particularly heavy with respect to younger lawyers, who may be learning what is expected of them and otherwise may be too timid to complain. While it may be reasonable to expect a more experienced lawyer to know his or her limits, a supervisory lawyer should make an affirmative inquiry with a less experienced lawyer.

A subordinate lawyer is bound by the Rules of Professional Conduct whether or not he or she acts at the direction of another. ER 5.2(a). Normally, when an arguable question of professional duty exists and a supervisory lawyer has made a reasonable resolution of the problem, a subordinate lawyer does not violate any ethical rules by acting in accordance with the direction of the supervisory lawyer. ER 5.2(b). The Comment to ER 5.2 discusses the latter situation in the following manner:

“When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly." (Comment to ER 5.2)

However, application of these principles to a subordinate lawyer's determination that his or her workload is excessive may be problematical if the supervisory lawyer and subordinate lawyer differ. Although the law in some contexts may treat Assistant Public Defenders as interchangeable goods, the duties of competence and diligence are peculiarly individual duties. Individual skills are not interchangeable; and what one lawyer may comfortably handle may severely overtax another.

An individual lawyer's determination that his or her caseload is excessive and violative of his or her duties of competence and diligence is entitled to great weight. Just as this committee rejects any mathematically set number of cases a lawyer may handle as an ethical norm, we do not believe that the Rules of Professional Conduct allow a supervisory lawyer to arbitrarily require each lawyer in an office to handle a certain number of cases. Aside from differences in individual skill, differences in the complexity of cases, difficulties in communication with clients, variances in factual investigation and legal research render it virtually impossible to determine some ideal basket of 160 cases that an "average" lawyer should handle in a year.

Absent legitimate supervisory management issues such as dilatoriness, for example, a subordinate lawyer's determination that a caseload is too great for the lawyer to meet his or her duties of competence and diligence should, in most cases, remove the ethical issue of work load from those ethical issues subject to reasonable dispute. When an individual lawyer concludes that taking on additional cases will result in ethical violations, he or she must move to withdraw or terminate representations.

ETHICAL RESPONSIBILITY AND THE COURTS

The ABA Standards for Criminal Justice address workload responsibilities of a Public Defender Office as follows:

"Whenever defender organizations or assigned counsel determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations or assigned counsel must take such steps as may be appropriate to reduce their pending or projected workloads." (1 ABA Standards for Criminal Justice, Standard 5-4.3 (2d ed. 1980), at p. 5.47)

Under the circumstances presented, the Public Defender has an ethical duty to reduce pending or projected caseloads. This will require the Public Defender to seek to decline appointments or withdraw from appointments already made until caseloads are manageable.

The committee notes that, while the Public Defender here may have an ethical duty to file motions to withdraw from representation, the fates of those motions become matters for the courts. As an ethical matter, ER 1.16(c) provides that a lawyer must continue to represent clients if ordered to do so by a tribunal even if good cause exists to withdraw. However, a lawyer, ordered by a court to engage in action which is believed by the lawyer to be an ethical violation, should continue to object on ethical grounds and to seek whatever judicial review in his or her independent judgment is reasonably available and necessary, although complying in the meantime with any court order.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.