The Constitutional Right to Effective Assistance of Counsel

Maine is starting to make changes in the court appointed system.  Attorneys now have to meet minimum standards besides just passing the Bar Exam.  Additionally, to take certain criminal case an attorney needs to have higher qualifications.  However, one stumbling block that remains is that lawyers are still getting paid the same hourly rate they were getting paid in 1997.  Every other bill and expense has risen except they pay.  I hope a lawsuit can be avoided in Maine.

 

Gideon Alert: Washington State lawsuit exposes non-representation in municipal courts

BY David Carroll on Wednesday, June 22, 2011 at 1:19 PM

On June 10, 2011, a class action lawsuit was filed in the Superior Court of Skagit County, Washington, by the law firm of Terrell Marshall Daudt & Willie PLLC and The Scott Law Group P.S., as reported in the June 20 Seattle Times.  The suit alleges that the cities of Mount Vernon and Burlington have breached their constitutional duties to operate a public defense system that provides effective assistance of counsel to indigent persons charged with crimes in their municipal courts. The complaint alleges that the defendants failed to: a) impose caseloads restrictions on public defenders; b) “monitor and oversee the public defense system;” c) “provide adequate funds for public defense;” and, d) “provide representation at all critical stages of the prosecution;” among others.   The cities’ failures, the complaint contends, have resulted in a constructive denial of the right to counsel under Gideon v. Wainwright.  The lawsuit asks for injunctive and declaratory relief to prevent further violations and to protect the constitutional rights of all indigent persons charged with crimes in the municipal courts of Mount Vernon and Burlington. Or, as co-lead attorney Matthew Zuchetto states in the plaintiffs’ press release,“[a]t the end of the day, our clients are simply asking for one thing: to fix the system.”

The requirements of the 6th Amendment right to counsel are no different when it comes to alleged violations of city ordinances carrying potential jail time than for more serious crimes.  Each client is constitutionally entitled to be represented by a public defense attorney who has sufficient time and resources to fulfill the basic parameters of attorney performance on behalf of that client.  In over-simplified terms, this means the attorney is able to, among other things: meet and interview the client; prepare and file necessary motions; receive and review the prosecutions responses to motions; conduct a factual investigation, including locating and interviewing witnesses; engage in plea negotiations with the state; prepare for and enter a plea or conduct the trial; and prepare for and advocate at the sentencing proceeding when there is a guilty plea or conviction following trial.

These obligations, owed by each criminal defense attorney to each individual client, are explained in detail in the national attorney performance standards.  Moreover, the American Bar Association’s Ten Principles of a Public Defense Delivery System requires accountability from and by defense systems, so that taxpayers and policymakers and victims and clients alike can all know whether a system’s attorneys are fulfilling these obligations to each client (Principle 10). Each attorney within a public defense system represents numerous clients, all at the same time, but the attorney owes the same full set of duties to each one of those clients.  In May 2006, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-441, stating that “[a]ll lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently.”  If an attorney does not have any time and resources remaining to dedicate to the next client’s case, then the attorney must not take that next case.  And, this is why national standards, as reflected in ABA Principle 5, require that the public defense system must control the workload of each attorney within the system and of the system overall.
Mount Vernon and Burlington jointly operate a flat fee contract system that pays two attorneys a single lump sum of money to handle up to 1,200 cases apiece.  This despite the fact that such a caseload is three times the maximum allowed for a full-time public defender under the standards of the Washington State Bar Association (WSBA) (which are reflective of national public defense workload standards).  This type of contract creates a direct financial conflict of interest between the attorney and the client.  Because the lawyer will be paid the same amount, no matter how much or how little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case.  Worse yet, the Mount Vernon and Burlington flat fee contract require the lawyers to pay all case-related expenses out of the single lump sum they receive.  In this situation, it is in the lawyer’s personal interest to incur as little expense on behalf of clients as possible, so that more of the lump sum payment can go toward the lawyer’s fee. (To read how a similar Washington flat fee contract led a Chelan County public defender to pay $2.9 million in settlement of a wrongful incarceration claim due to ineffective assistance of counsel, click here.)
These inherent financial conflicts of interest and the excessive caseload expected of each attorney can result in the failure to provide competent representation.  The Washington class action suit alleges exactly that:  that the public defense lawyers are failing to meet the basic parameters of ethical performance.  Included among the allegations are that:
  • “indigent persons are deprived of adequate consultation and communication with their attorneys”;
  • “indigent persons must make decisions about their rights or contest issues without adequate factual or legal investigation by their attorneys”;
  • “indigent persons are deprived of meaningful opportunities to present defenses”;
  • “the rights of these indigent persons are waived without proper consultation and advice”;
  • “indigent persons are deprived of the services of investigators and expert witnesses”;
  • “the cases of these indigent persons are not properly prepared for trial”; and,
  • “indigent persons do not receive meaningful benefits in exchange for guilty pleas.”
According to the complaint, one of the attorneys was assigned 1,150 cases in 2010, while the second attorney was appointed in 950 cases during the same year.  As noted above, this is approximately three times above the WSBA standard of 300 to 400 assignments per year depending on such factors as local charging practices.  (The WSBA caseload standard allows up to 400 new assignments in a given year — assignments plus cases pending at the start of a year, while national standards set a ceiling of a total of 400 cases handled in a year.)  And, of course, these numbers do not begin to factor in the two attorneys’ private caseloads, which the complaint contends makes up over two-thirds of their workload.
These factors and others led the class action lawsuit to assert that Mount Vernon and Burlington are in violation of state law requiring jurisdictions to adopt local standards that, among other things, establish caseload controls and place “limitations on private practice of contract attorneys.”  The same statute recommends using WSBA Standards as a guideline for local standards.  WSBA standards state that “[i]n jurisdictions where assigned counsel or contract attorneys also maintain private law practices, the contracting agency should ensure that attorneys not accept more cases than they can reasonably discharge. In these situations, the caseload should be based on the percentage of time the lawyer devotes to public defense.”  Under this scenario, a public defense attorney dedicating only 33 percent of his time to right to counsel cases should handle no more than 100-133 public cases per year.  If the facts as alleged in the complaint are proven true, the Mount Vernon and Burlington attorneys are working at or above 700 times the caseload anticipated by WSBA standards.
The complaint alleges that the two attorneys visited the local jail just six times in 2010 to contact a combined total of seven clients (and, even then, it may have been to visit private clients since jail log books make no such distinctions).  By comparison the complaint documents that lawyers from the Skagit County Public Defender’s Office made “750 visits to the jail and met with 1,551 clients” during the same time period.  The lawsuit contains quotes from many client interviews explaining the lack of representation by the contract lawyers. Perhaps even more telling is a November 2009 e-mail from the Mount Vernon Chief of Police to the city administration detailing how he and other officers are unable to get in contact with the lawyers and that the city is “not getting the service that is their obligation to perform.”
Despite such complaints, the contract was recently renewed, allegedly upon the request of the City Attorney despite clear statutory language prohibiting “city attorneys, county prosecutors, and law enforcement officers” from selecting indigent defense providers.  On December 15, 2010, the Mount Vernon City Attorney allegedly testified before the City Council that an extension of the contract without increased compensation “is within the best interests of the City.”  The same night the council adopted the City Attorney’s recommendation.  The renewed contract should come under scrutiny, since the Washington Supreme Court in January 2009 banned indigent defense providers, through its Rule of Professional Conduct 1.8(m), from entering into flat fee contracts because of the inherent conflict of interest it produces between a client’s right to adequate counsel and the attorney’s personal financial interest.
The problems of municipal court representation are not unique to Mount Vernon and Burlington in Washington state. (See, for example, our January 2011 Gideon Alert on Broward County, Florida).  Other state bar associations should emulate the Washington State Bar in promulgating and adopting indigent defense standards in line with the ABA Ten Principles.  Once adopted, advocates should then seek to have those standards codified through Supreme Court Rule or legislative enactment (or both).  On June 3, 2011, the Board of Governors of the WSBA unanimously approved modifications to the WSBA standards and sent the changes to the Washington Supreme Court seeking adoption by court rule by 2013.

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