Is the Bar to Blame for the Public Defender Crisis?

20 Mar Is the Bar to Blame for the Public Defender Crisis?

There have been a number of articles lately regarding the dire state of state public defender systems. This has left me wondering whether state bar associations share some of the blame for the public defender crisis.

First, it bears considering what exactly the problem is. In many areas, there are insufficient numbers of employees in public defender offices to adequately satisfy the need for these services. In other areas, where there are no public defender offices and defendants are provided free legal counsel by private attorneys, there are insufficient numbers of attorneys willing to accept criminal appointments.

The situation has gotten so bad in some areas that public defender offices have begun turning clients away, and lawyers with no criminal law experience (or, for that matter, interest in acquiring criminal law experience) have been press-ganged into defending indigent clients.

There are, of course, a number of things to be said about this crisis—how almost every public defender office is woefully underfunded, how forcing private attorneys to accept criminal appointments is unwise and probably illegal—most of which has already been ably said by other scholars. There is an additional, unraised question that bears exploring, though.

What role should state bar associations have in this crisis, and what blame do they share in the problems currently confronting indigent defense in the United States?

As an initial matter, it is tempting to think of state bar associations as simply trade associations formed and maintained for the benefit of their members. But this is true neither in fact nor in law. Rather, bar associations share a strong responsibility for ensuring the integrity of their members and, by extension, the integrity of the legal system as a whole. As a result, bar associations have a responsibility to make sure that their members participation in indigent defense systems furthers the legitimacy of the law.

The next question naturally becomes what they should do about it. At a bare minimum, taking cases when an attorney lacks the time to give them sufficient attention violates the rules of professional ethics. But sanctioning attorneys who work in public defender offices after the fact is hardly a fair or wise solution.

The better solution is to put all interested parties—attorneys, judges, and legislators—on notice that public defenders have been placed in an unethical position as a result of chronic underfunding. State bar associations should then issue specific guidance to public defender offices and private attorneys on when it is ethically necessary to decline to take cases. While this could appear to be harsh targeting of these attorneys, in fact it would provide cover for attorneys who would otherwise feel morally, legally, or ethically obligated to accept cases when they already have too many. Additionally, it would take state bar associations out of the fait accompli relationship they currently occupy in this crisis.

Legislatures clearly have no interest in solving the public defender crisis, since the people most affected by it are poor and have been accused of committing crimes—two attributes legislatures seem to disdain above all others. The resolution for this problem must come from elsewhere if it is to come at all.

Bar associations should therefore take up the responsibility they bear for ensuring the legitimacy of the legal system by leading the charge for a solution to the public defender crisis.