What must a public defender or appointed lawyer do when their caseload is too high to represent every client competently?

Plain-English summary

The opinion addresses the recurring problem of public defenders and court-appointed lawyers who are assigned more cases than they can competently handle. The committee's starting point is that the Model Rules "provide no exception for lawyers who represent indigent persons charged with crimes." Rules 1.1, 1.2(a), 1.3, and 1.4 require competence, abiding by the client's decisions, diligence, and communication, and Comment [2] to Rule 1.3 states that a lawyer's workload "must be controlled so that each matter may be handled competently." Whether a workload is excessive is not measured by numerical caseload standards alone, but also by case complexity, available support services, the lawyer's experience, and the lawyer's non-representational duties.

Because a lawyer's primary duty runs to existing clients, the committee concludes that the lawyer must decline new cases rather than withdraw from current ones, and must reduce an already-excessive workload to a manageable level. A lawyer who receives cases through court appointment should ask the court to refrain from assigning new cases and, if necessary, move to withdraw from enough cases to allow competent representation of the rest. If the court denies the motion to withdraw, the lawyer must obey the order and continue the representation while taking all feasible steps to assure competent representation, and may pursue available avenues of review. The committee notes a lawyer may not invoke an excessive workload merely to avoid cases; under Rule 6.2(a) good cause must objectively exist.

The committee treats a public defender's office as the equivalent of a law firm under Rule 1.0(c), so cases may be reassigned within the office and the lawyer should advance the problem up the chain of command for relief. Under Rule 5.1, supervisors must make reasonable efforts to ensure subordinate lawyers conform to the Rules, which includes monitoring workloads; under Rule 5.1(c), a supervisor who knows a subordinate cannot provide competent and diligent representation and fails to take reasonable remedial action is responsible for the subordinate's violation.

In practice

Under this opinion, a defender facing an unmanageable caseload should first decline new appointments and seek internal reassignment or relief up the supervisory chain, and if that is not enough, move to withdraw from cases. The opinion ties the lawyer's options to the duty to existing clients, so reducing the load by refusing new work comes before withdrawing from current matters. It also places an affirmative monitoring duty on supervisors, not just line lawyers.

Common questions

Q: My appointed caseload is too high to do a competent job. Can I keep taking new clients?

A: No. The opinion concludes the lawyer must decline new cases, and if cases come through court appointment, "request that the court refrain from assigning new cases." The lawyer's "primary ethical duty is owed to existing clients."

Q: What if I'm already over capacity?

A: Reduce the load. The opinion directs the lawyer to seek internal reassignment and relief up the chain of command, and if necessary to move to withdraw from enough cases to allow competent and diligent representation of the remaining clients.

Q: What happens if the judge denies my motion to withdraw?

A: You must continue but do your best. The opinion states that if withdrawal "has been denied, the lawyer must take all feasible steps to assure that the client receives competent representation."

Q: Do supervisors share responsibility?

A: Yes. Under Rule 5.1 supervisors must monitor workloads, and the opinion explains that a supervisor who knows of and fails to remedy a subordinate's excessive workload is responsible for the resulting violation.

Background and rules framework

The opinion interprets Model Rules 1.1 (competence), 1.3 (diligence) and its Comment [2], 1.4 (communication), and 1.16(a) (mandatory withdrawal when continuing would violate the Rules), along with Rule 6.2(a) (declining appointments only for good cause). It treats the defender office as a "firm" under Rule 1.0(c) and applies Rule 5.1, including 5.1(c), to supervisors. It situates the duty against the constitutional backdrop of the right to effective assistance of counsel.

Citations and references

Rules of Professional Conduct:

• ABA Model Rules 1.1, 1.3 (and Comment [2]), 1.4 (competence, diligence, communication)
• ABA Model Rule 1.16(a) (mandatory withdrawal)
• ABA Model Rule 5.1 and 5.1(c) (supervisory responsibility)
• ABA Model Rule 6.2(a) (declining appointments for good cause)
• ABA Model Rule 1.0(c) (definition of "firm")

Cases:

• Strickland v. Washington, 466 U.S. 668 (1984), effective assistance standard
• Gideon v. Wainwright, 372 U.S. 335 (1963), right to appointed counsel
• In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990)

Other opinions cited:

• ABA Formal Op. 347 (1981); ABA Formal Op. 96-399 (1996)
• National Legal Aid and Defender Ass'n / American Council of Chief Defenders Op. 03-01 (2003)

See also

• ABA Formal Op. 467: Managerial and Supervisory Obligations of Prosecutors
• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• ABA Formal Op. 469: Prosecutors and Debt Collection Companies

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 06-441.pdf